Perry v. State

• Citation: 139 Cal.App.2d 379,293 P.2d 480
• Court: California Court of Appeals Court of Appeals
• Decision Date: 21 February 1956
• Parties: B. F. PERRY and Anona Dunbar Perry, his wife, Plaintiffs and Appellants, v. The STATE of California and Earl M. Warner, Defendants and Respondents. Civ. 8651. . California

Page 480

293 P.2d 480

139 Cal.App.2d 379

B. F. PERRY and Anona Dunbar Perry, his wife, Plaintiffs and Appellants, v. The STATE of California and Earl M. Warner, Defendants and Respondents.

Civ. 8651.

District Court of Appeal, Third District. California.

Feb. 21, 1956.

Rehearings Denied March 21, 1956.

Hearing Denied April 18, 1956.

Frank K. Richardson, Sacramento, for appellants.

Edmund G. Brown, Atty., Gen., by Paul M. Joseph, Deputy Atty. Gen., for respondents.

Bruce F. Allen, Sacramento, for E. M. Warner.

VAN DYKE, Presiding Justice.

Plaintiffs brought this action to quiet their title as against the State and respondent Warner to a parcel of land described by metes and bounds which presently lies on the river side of a levee erected by a reclamation district along the westerly margin of the Mokelumne River just below its junction with Georgiana Slough in Sacramento County. Plaintiffs claim title by virtue of a quitclaim deed from Golden State Asparagus Company, a corporation, which corporation owned that portion of Swamp and Overflowed Land Survey No. 943 westerly of the junction of Georgiana Slough and the Mokelumne River. If the parcel quitclaimed to plaintiffs formed a part of that survey that plaintiffs' title is good. Judgment went against plaintiffs and from that judgment they prosecute this appeal.

When on September 9, 1850 California was admitted to the Union she took title as sovereign to lands within the beds of Mokelumne River and Georgiana Slough, both navigable streams. That title covered the beds and the banks of the streams, the banks being those portions of the shore lying below mean high tide. On September 28th following, by virtue of the Swamp and Overflowed Land Act she took title to swamp and overflowed lands along said streams. Congressional legislation granting said lands (see 43 U.S.C.A. 'Public Lands', 982 et seq.) declared that to enable the several states to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein the whole of such lands 'made unfit thereby for cultivation, and remaining unsold on or after the 28th day of September, A. D. 1850', were granted and belonged to the several states respectively, in which said lands are situated. Although the act was construed to be a grant in praesenti it was apparent that the general description contained in the ligislation would not serve to specifically describe such tracts of land as might in fact come within the general description. Accordingly, it was provided that it would be the duty of the Secretary of the Interior to make accurate lists and plats of all such lands and to transmit the lists to the Governors of the several states in which such lands might lie; and at the request of the Governor of any state to cause patents to be issued to said state for such lands, conveying thereby the fee-simple title to said land. Other provisions were contained in the legislation to aid in the segregation of such lands from the general body of lands owned by the federal government and to confirm title to the states. The act did not apply to nor convey title to land within the beds of navigable streams, including the banks thereof, below mean high tide, for such lands were held by the state as an attribute of its sovereignty and the title thereto originated with the admission of the State to the Union. The foregoing propositions are well decided and reference may be made to the language of the act and to the case law developed after the passage of the act, a partial, but sufficient, reference being as follows: Rogers Locomotive & Machine Works v. American Emigrant Co., 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552; Owens v. Jackson, 9 Cal. 322; Summers v. Dickinson, 9 Cal. 554; Kernan v. Griffith, 27 Cal. 87; Sacramento Valley Reclamation Co. v. Cook, 61 Cal. 341; Tubbs v. Wilhoit, 73 Cal. 61, 14 P. 361; Foss v. Johnstone, 158 Cal. 119, 110 P. 294; Ferry Pass Inspectors & Shippers' Ass'n v. White River Inspectors & Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 22 L.R.A.,N.S., 345.

In 1868 Survey No. 943 of Swamp and Overflowed Lands, covering land lying westerly of Georgiana Slough and Mokelumne River, was made by the County Surveyor of Sacramento County, and in 1873 patent to lands within the survey, comprising something over 2,000 acres, was issued by the state. The description began at a described point and, so far as material here, proceeded by metes and bounds to 'the west bank of Georgiana Slough * * * thence downstream * * * to the Mokelumne River, thence downstream' to a point on the river, where the survey left the river and went to the point of beginning. It is claimed by plaintiffs that this swamp land survey included the land to which they herein seek to quiet title. Whether or not it did was the sole issue between the parties. At the point of junction between Georgiana Slough and Mokelumne River and extending downstream from or off the point of junction the record is clear that from beyond the memory of living witnesses there existed a body of land narrow but extending down river for a considerable distance which may have been at the critical date, September 28, 1850, a part of the westerly bank of the Mokelumne River. If it was then it was included within the swamp and overflowed lands survey and plaintiffs should have had their title quieted. If, on the contrary, it lay offshore from the westerly bank and within the banks of the river, then it was not included in the swamp land survey and the judgment of the trial court which quieted title in the state must be affirmed. The testimonial evidence introduced came from witnesses whose acquaintance with the locale went back to the early 1900's. These witnesses testified from memory as to the elevation of the land above mean high tide and as to the contiguity or lack thereof with the land to the west. It appeared from this evidence that, beginning with the point of confluence of the two streams, the land was above mean high tide, the elevation gradually lessening downstream until the lower end of the parcel lay below mean high tide. As to the juncture of the parcel with the mainland, the evidence of these witnesses was in conflict, some ststing positively that prior to the raising of the old levee along the Mokelumne the parcel was annexed to and a part of the mainland, while others testified that most, if not all, of the parcel was separated from the mainland by a water channel that was not produced by dredging, but by nature. In so far as such testimony could afford an inference as to the condition existing in 1850 it was admissible, but obviously it was of little value and that it was conflicting was to be expected. The westerly river levee was raised by dredger action in 1907 and 1908, which time marked about the limit that the witnesses attempted to go back to in memory. This evidence left a gap of more than half a century between the time these witnesses made their observations to which they testified and the critical point of time when title passed to the state, including or excluding the parcel, according to whether or not it was then a part of the mainland or lay within the river. These witnesses variously described the growth of vegetation upon the parcel. Some said that in the early 1900's they observed willow and alder trees of considerable size growing upon the parcel, while others said that it was to a great extent covered only with tules, indicating, as they said, that in such portions it lay below mean high tide. But quickgrowing trees and vegetation of the kind described seen 50 years after the critical date make weak evidence upon which to base an inference as to the condition of the parcel a half century before.

United States geodetic surveys of the area, including the junction of the Georgiana Slough and the Mokelumne River, which were introduced in evidence, and of which courts take judicial notice, indicate that the general level of the land lying westerly of the streams, which we have called the mainland, was below what the surveys designate to be 'sea level' and since there is no dispute but that these lands,...