Thomas B. Bishop Co. v. Santa Barbara County

• Decision Date: 22 April 1938
• Docket Number: No. 8532.,8532.
• Citation: 96 F.2d 198
• Parties: THOMAS B. BISHOP CO. v. SANTA BARBARA COUNTY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.2d 198 (1938)

THOMAS B. BISHOP CO. v. SANTA BARBARA COUNTY et al.

No. 8532.

Circuit Court of Appeals, Ninth Circuit.

March 18, 1938.

Rehearings Denied April 22, 1938.

Sterling Carr, of San Francisco, Cal., and H. F. Prince and Gibson, Dunn & Crutcher, all of Los Angeles, Cal., for appellant.

Percy C. Heckendorf, Dist. Atty., C. C. Ward, and David S. Licker, all of Santa Barbara, Cal., for appellee Santa Barbara County.

Faries & McDowell, of Los Angeles, Cal., for appellees Chase et al.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The appellant sued in ejectment to recover a parcel of land claimed to have been included in a patent from the United States, granting to its predecessor the Rancho Los Dos Pueblos in Santa Barbara County, California. This appeal was taken from an adverse judgment.

The trial court made findings, including as part of them the patent and the plat of survey of the Rancho. The evidence, aside from the patent and plat, is not before us, and thus the sole question presented is whether the conclusions of law and judgment are supported by the findings. The land involved is a sandspit, asserted by appellees to be part of the public domain. Santa Barbara County claims the sandspit by virtue of a lease granted by the Department of Interior pursuant to an act of Congress entitled "An Act To enable the board of supervisors of Santa Barbara County to maintain a free public bathing beach on certain public land." Public 92, 69th Congress, Act April 5, 1926, 44 Stat. 235.

Originally the Rancho Los Dos Pueblos was the subject of a Mexican grant, dated 1842, and approved by the Departmental Assembly three years later. In 1853 the claimant, one Nicholas A. Den, presented a petition for confirmation of the grant to a Commission set up to ascertain and settle private land claims under Act March 3, 1851, 9 Stat. 631. The Commission confirmed Den's title, and on appeal to the United States District Court the decree confirming the validity of the grant was affirmed. Thereafter the Rancho was surveyed and plat of the survey prepared under authority of the Surveyor General, and in 1877 United States patent was issued for the land embraced and described in the survey. The decree of confirmation entered by the United States court is recited in the patent. The Rancho is there described in general terms as "situate in the County of Santa Barbara, and known by the name of `Dos Pueblos,' and is bounded by the seashore, by the high hills toward the mountains, by the `Canada del Corral' and by the place called `La Cochero' toward the Presidio of Santa Barbara. The land hereby confirmed is of the extent of three and one-half leagues within the boundaries."

As illustrative of the facts, so much of the plat as is necessary for this purpose is shown below:

The sandspit in controversy does not appear on the plat. It extends easterly from the place marked post "DP 2" partway across the mouth of the Estero, now known as Goleta Slough. In the findings it is described as being about a mile in length and of irregular width. It is about 600 feet wide at its widest point, and at its highest is about 7 feet above sea level. It contains between 20 and 25 acres. At its easterly end a tidal channel connects with the waters of the Pacific Ocean. This tidal channel extends into the Estero along the northerly side of the sandspit, and then runs northwesterly with its ordinary high tide line roughly paralleling the foot of a line of bluffs. The sandspit is entirely surrounded by tidal waters except for the westerly end where it joins the land. Except for temporary variations in length, breadth, and height, occasioned by storms and floods, this sandspit has existed substantially as described since at least as early as 1842.

Bluffs averaging 40 feet in height extend in a nearly continuous line along the shore of the ocean from the westerly limit of the Rancho to and including the southerly shore of the Estero. The field notes of the surveyor (they are set out in the patent) indicate that the survey commenced at a post marked "DP 1," which is a corner at or near the ocean common to the grant in question and the Rancho Canada Del Corral, forming its westerly boundary. From this starting point the survey extended easterly along the top of the bluffs fronting the ocean to the station marked "DP 2." The trial court found that the precipitous nature of the bluffs made it impractical to survey the actual boundary line of the ocean. It found that the survey line between the stations mentioned "was and is the meander line of the shore of the Pacific Ocean between these points." The foot of the bluffs on top of which post DP 2 of the survey was located runs in a nearly straight northwesterly line from a point on or near the ordinary high tide line of the Pacific Ocean to a point on or near the high tide line of the Estero. The base of the sandspit is at the foot of this line of bluffs.

It was found that, although prior to the issuance of the patent objection had been made to the survey line of the grant in respect of another part of the boundary, the patentee had made no objection to the fact that the survey line and plat failed specifically to include the sandspit in controversy. There are other findings which need not be mentioned, as they must yield to the crucial finding that "unless the sandspit was embraced in the grant and the patent, it was and is public land of the United States."

As a conclusion of law the trial court decided that the patent to the Rancho was intended and is to be construed to make the ordinary high tide line of the Pacific Ocean the boundary of the grant from station 1 of the survey to a point on the high tide line of the ocean opposite the foot of the line of bluffs at the westerly end of the sandspit, and to make the ordinary high tide line of the Estero the boundary from a point at the westerly end of the sandspit to a point on the high tide line of the Estero opposite station 22 of the survey. It is concluded that the boundary of the grant extends along the foot of the line of bluffs, across the base of the sandspit, from the high tide line of the ocean to that of the Estero. Accordingly, it is held that the patented area does not include the sandspit.

The opinion of the trial court and the briefs refer to an examination made in 1929 by the General Land Office of conditions along the south boundary of the Rancho in question, in what is called the Lloyd's Scrip Case. The purpose of the examination was to ascertain if public land exists between the Rancho and the Pacific Ocean. The conclusions arrived at as a result of this investigation are embodied in a letter of Assistant Secretary Edwards of the Department of the Interior, addressed to the Commissioner of the General Land Office under date of February 4, 1930. The letter states that the lines of the patent survey were retraced. It is pointed out that the surveyor, in running along the seashore, chose a line of least resistance along the top of the bluff rather than a consistent following of the mean high water mark of the ocean. The Department determined that there are approximately 246 acres of land between the official meander line and the mean high water mark, along the entire ocean frontage of about 10 miles. No evidence or suggestion of fraud on the part of the surveyor was found. It was concluded, as a result of this investigation, that the south boundary of the Rancho is the Pacific Ocean, and that there is no public land in the area in question. It does not appear whether any attention was given the sandspit here in controversy. It is stated in the departmental report that corner No. 2 (DP 2) was re-established in 1925 by Sidney E. Blout, United States Cadastral Engineer, who also established an auxiliary meander corner on the shore of the Estero, 2.46 chains distant, and another auxiliary meander corner at a point on mean high tide line on the shore of the ocean, 2.583 chains distant from the re-established corner DP 2. It would seem that in determining the location of the latter post the trial court was guided by the work of Blout. While the findings do not indicate the precise location of the post, it is said by the court to be on top of the bluff. It would thus appear that the post is about midway between the shore of the ocean and the shore of the Estero, a little closer to the latter. This would place it about opposite the center line of the sandspit.

Between post No. 1 and post DP 2 of the survey as found in the patent there were 18 courses. The field notes describe the 18th course as running "thence North 65 degrees 30 minutes East 25 chains a large redwood post marked `DP 2' Station on the shore of an arm of the sea or Estero." While, for his own convenience, the surveyor placed the post DP 2 on top of the bluff, it seems plain that the 18th course was intended to delineate the water line to a point on the shore of the Estero. The nineteenth course, running thence northwesterly, is described as being "along Estero on top of bluff." The trial court found, and we think properly, that the survey line between the point of...