26 P.2d 33 | Cal. Ct. App. | 1933
On August 11, 1928, the defendant conveyed to the plaintiff certain lots in Newport Beach, according to the recorded map or plat thereof. Thereafter, the plaintiff brought this action to quiet title to a tract of land lying between the lots as described in the deed and the line of ordinary high tide of the Pacific Ocean in Newport Bay. In her answer the defendant alleged that she was the owner of this additional land and asked that her title thereto be quieted. The court found in favor of the defendant and from a judgment quieting her title the plaintiff has appealed. *654
The appellant introduced no oral testimony and relies entirely upon two exhibits received in evidence as establishing title in himself. The first of these is the above-mentioned deed executed by the respondent purporting to convey to the appellant certain lots as designated on the map. The other exhibit is the judgment-roll in a former action in which the city of Newport Beach was plaintiff and in which the parties to the present action, with others, were the defendants. In that action the court fixed the line of ordinary high tide of the Pacific Ocean in Newport Bay and adjudged and decreed that this respondent was the owner of the land in controversy, describing the same by metes and bounds, the description running from the lines of the lots and block as shown on the map or plat referred to and extending to and along the line of ordinary high tide. This judgment was entered on July 2, 1928, a few weeks before the deed above referred to was executed and delivered.
It is appellant's contention that this second exhibit establishes that the land here in question, lying between the lots as described in the deed and the ocean, was and is alluvion (Civ. Code, sec.
[1] The complaint in this action describes the land claimed exactly as the same was described in the judgment in the former action. In that action the court fixed the line of ordinary high tide, found that certain of the defendants were entitled to certain lands, and adjudged that this respondent was the owner of this particular land. No finding was made that this land was or is alluvion or accretion, and *655
neither the findings nor judgment make any reference thereto. As proof that this land is alluvion, the appellant here relies upon a statement in an affirmative defense included in the answer filed for all of the defendants in the former action, which reads as follows: "That there is attached to the respective parcels of land above described as alluvion and accretion thereto, formed from natural causes by imperceptible degrees, other lands, which, by virtue of said accretion belong to said defendants and which said lands extend over, beyond and bayward of the said line described in said complaint." It is argued that while the court made no finding with reference to that special defense, it was "necessary for the court to find that the land here in controversy was alluvion in order to warrant the judgment made in said action". The statement referred to is not binding upon this respondent since the answer in which it appears was signed only by the attorneys for the defendants in that action and the same was not verified, verification being waived (McDermott v.Mitchell,
[2] The appellant argues that by the doctrine of resadjudicata or estoppel, or both, the judgment in the former action establishes that this particular land is alluvion and a *656 part of the lots formerly owned by the respondent. Not only were the parties hereto not adverse in the former action, but the judgment therein referred to the fact that this appellant claimed some interest in this property as against this respondent and awarded the property to this respondent subject to such rights, if any, particularly stating that no adjudication was made in regard thereto.
[3] The question of whether title to accreted land passes when the upland, to which it is attached, is conveyed, is purely one of the intention of the parties (Freeman v. Bellegarde,
The judgment is affirmed.
Marks, J., and Jennings, J., concurred.