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Packer v. Bird

71 Cal. 134 Court Department Two. Decision date 1886-09-28 Docket No. 11162 English

Delivered by Thornton, J.

Contents

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p. 134
[No. 11162.
Department Two.
September 28, 1886.]
GEORGE F. PACKER, Appellant, v. JAKE BIRD et al., Respondents.

Headnote

Patent—Land Bounded by Navigable River—Title only Extends to Edge of Stream — Island. — Where a patent issued on a confirmed Mexican grant describes the land conveyed as bounded by a river navigable in fact, the title of the patentee extends no further than the edge of the stream, and does not include an island situated in the river opposite the mainland, notwithstanding the portion of the river between the island and the mainland is not navigable.
Appeal from a judgment of the Superior Court of Colusa County, and from an order refusing a new trial.
The facts are stated in the opinion of the court.
John T. Harrington, and W. C. Belcher, for Appellant.
Stabler & Bayne, and W. G. Dyas, for Respondents.

In this action the controversy relates to an island in the Sacramento River, in that portion of the river which is a navigable stream.

The plaintiff claims under a patent from the United

p. 135
States, issued on a confirmed Mexican grant. The land as granted was bounded by the Sacramento River, and lay on the west side of the river. The patent, by its terms, is also bounded by the river.

The contention of plaintiff is, that the land granted and patented to him being bounded by the river extends to the thread of the stream and includes the island.

We do not concur in this view. The river being navigable in fact, the title extends no farther than the edge of the stream. We think this conclusion accords with the rulings in People v. Gold Run D. & M. Co., 66 Cal. 138 , and Lux v. Haggin, 69 Cal. 255 .

We think that the court ruled correctly in holding that the plaintiff acquired no title to the land sued for by the patent of the United States in this case.

The appellant relies to sustain his contention greatly on the judgment in the Railroad Company v. Schurmeir, 7 Wall. 272 . We cannot perceive its applicability to the facts of this case. The land sued for here is clearly an island. The court in the case cited manifestly did not hold the land in controversy to be an island. The slough, so called, in that case was not, nor was it held to be, a part of the Mississippi River.

It makes no difference that the portion of the Sacramento River on the west side of the island is not ordinarily navigable or not navigable at all. There is but one river, and that a navigable one. The waters on each side of the island constitute parts of one navigable stream.

The judgment and order are affirmed.

McKee, J., and Sharpstein, J., concurred.

Hearing in Bank denied.

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