118 P. 233 | Cal. | 1911
Plaintiff brought this action in ejectment to recover from the defendants the possession of the western portion of what is known as Coonskin Island, situated on Lower Eel River, in the county of Humboldt. The complaint charged in two counts. The first alleged ownership, possession, right of possession, and ouster by defendants; the second rested upon possession and right of possession only, with ouster by defendants. The answer was by denial. The cause was tried before a jury, which rendered a general verdict in favor of the defendants. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.
To the understanding of the legal contentions it is proper to say that the evidence establishes without conflict that the land in controversy was originally formed in the navigable waters of Eel River about a mile and a half above its mouth by a drift or snag in the river channel. This drift, originally of small dimensions, checked the current and caused the deposit of detritus, thus gradually forming an island. As is usual in such cases the accretions were for the most part added to the lower end so that the river here running westerly the westerly end of this island gathered accretions and continued to grow. The island had its beginning in 1866. Eel River about this island is admittedly a navigable stream. The island was for years separated from the main land by two channels, that to the south, though the narrower and shallower, was often used by sailing vessels in their river commerce. The river here is affected by the ocean tides and at the time of the trial of this action, while there was a dispute in the testimony as to whether the channel between the south bank and the island was absolutely dry at low tide, it was undisputed that at other *794 stages of the tide there was water in the channel from one hundred feet to one hundred and fifty yards in width. The island thus continued to grow until at the time of the trial it contained more than twenty-one acres of land. Plaintiff and defendant Andreason owned land upon the main land south of the river, the bank of the river at high tide being the limit of their northerly boundaries. Their lands are contiguous and the dividing line projected into the river and across the island would divide the latter into two unequal portions, the western portion being formed by the latest accretions. This is gravelly and unfit for cultivation, but possesses a value for fishing purposes. In 1903 defendant Andreason built a dividing fence across the island and took and continued to hold possession of this western part, asserting that it belonged to him by virtue of his patent to the shore-lands from the state.
So far the evidence is without conflict, and, indeed, there is very little conflict between any parts of the evidence. Thus, it is shown by plaintiff without substantial conflict that in 1886 he puchased from the state the main land opposite the eastern portion of the island, that he found the whole island unoccupied, that he took possession of the whole of it and proceeded to exercise and continued to exercise full dominion and control over all of it. He cleared it of brush and raised crops upon such part of it as was suitable for cultivation and he built a fence running north and south through the island, which fence was constructed along the line of high tide and enclosed and protected the cultivable land from wandering cattle. The land outside of the fence was sandy and gravelly and not suitable for cultivation, and, moreover, it was impracticable to maintain a fence further westward than the line where he constructed his fence because it would be washed away by high water and the tides. He did, however, use the western portion in all suitable ways. There was a cabin upon it and for years he rented the cabin with fishing privileges. He gathered the driftwood which settled upon the lower end and prohibited others from taking the driftwood. When the cattle of defendant Abrahamsen (the tenant of defendant Andreason) wandered out to the island, as they occasionally did, he always caused them to be driven off. No one else ever exercised any acts of dominion or control over the island *795 during these many years, though Abrahamsen and Andreason were both well aware of his possession and claim of right of possession, and, finally, plaintiff had the land surveyed, and from and including the years 1898 and 1899 and continuously thereafter it has been assessed to him and he has paid all taxes. The description and assessment covered the western portion of the island, the portion here in controversy.
The defendant Andreason testified that he had been in possession of the island since 1884, but from his subsequent evidence it is quite plain that this use of the word "possession" is his own conclusion, for that testimony is to the following effect: Witness had known the island since 1884 when he purchased the main land from the state; he lived upon his land for about two years when he leased it; during the time he was there he never drove his cattle to the island and when they wandered over he would bring them back; he did not take any interest in the island after he rented his place in 1886; he never cut a stick of wood on the island or sunk a hole in the ground prior to the time when he put up his fence in February, 1903; he never put any mark to show any dividing line between his land and Bouchard's and never had the island surveyed. Unless his patent to the main land carried with it the western portion of the island he had never paid any taxes upon the island. The evidence of Abrahamsen, Andreason's tenant, was to the effect that he had been a tenant and had had possession of Andreason's land for about fifteen years. His cows went over on to the island whenever they were down by the river. He had no notice from Mr. Bouchard that the latter claimed the western end of the island. He knew of the cabin there and he knew that it was occupied. Mr. Bouchard told him that he could not let any fishermen in the cabin and he replied that he did not care. He knew that Bouchard had built the fence. Mr. Bouchard and the members of his family always drove off his cattle when they went on to the west end of the island. He never told them that he had the island under lease and had a right to have his cattle there. All that he told them was that when they drove his cattle off he did not want them "dogged," that is, he did not want them forced to run. He never made a complaint about driving his cattle off other than to tell the boy he did not want his cows "dogged." He never drove any of his *796 cattle over to the island. He did not look after the island and did not do any act upon the island. His landlord, Mr. Andreason, never took him over and put him in possession of the island. Whenever he saw his cattle upon the island he himself always drove them home.
Defendant's additional evidence touching title is that he is the owner of the main land embraced in swamp land survey 41, the northern boundary of which lands follow the meanderings of the south bank of the Eel River. Defendant's land by this survey and patent, of course, extends no further than highwater mark on the river. (Heckman v. Sweet,
We have thus been at pains to set forth the evidence, not in consideration of the proposition that it is insufficient to justify the verdict of the jury since that question in the condition of the record is not before us, but because it is necessary that the evidence and varying contentions of counsel should be clearly understood when we come to review the instructions of the court which are complained of by appellant. Whatever may have been the condition of Coonskin Island at the time of the trial no doubt can be entertained from the evidence that it was originally a true island formed in the channel of a navigable stream. There is no word of evidence "that *797
the waters of Eel River suddenly changed its channel and thus made a sandbar." The testimony is overwhelming and is undisputed that it was formed as above described and that it was an island at the time plaintiff acquired the main land south of it. But if by any conceivable interpretation of the evidence it could be said that it was not originally an island, still it was not a sandbar formed by a sudden change of channel "and extending out from defendant Andreason's land." If it was not a true island the least that can be said is that it was an accumulation of land contemplated by section
The test of the true character of Coonskin Island is not what court or jury may find to be its present condition, but *798
what was its form at the time the state parted with its title to the main land? If at that time it was an island or an accumulation in waters admittedly navigable, then it belonged to the state and subsequent shoaling of the waters whereby a connection was made with the main land would not operate to change or divest the original title. Again, it is equally well settled that the accretions to such an island or accumulation become part of the island or accumulation itself and the possession of the island or the accumulation is a possession of such accretions. Bellefontaine Imp. Co v. Niedringhaus,
A just complaint made against the instructions given in this case is that the court refused to charge in the precise language of section
For these reasons the judgment and order appealed from are reversed and the cause remanded for a new trial.
Melvin, J., Shaw, J., Angellotti, J., Sloss, J., and Lorigan, J., concurred.
Rehearing denied. *800