26 P.2d 308 | Cal. | 1933
Defendant appeals from a judgment quieting plaintiff's title to certain beach lands at and near the mouth of the Carmel River in Monterey County. Plaintiff claims title by accession or accretion to the upland while the defendant claims through a legislative grant of tideland. The trial court found in favor of the plaintiff and gave judgment accordingly.
[1] The principal question on this appeal has to do with the sufficiency of the evidence to support the trial court's findings. Section
Examination of the record discloses that defendant introduced evidence tending to define and characterize the land here in dispute as above described. However, in view of the lower court's findings we must, under well-settled principles, accept plaintiff's evidence which very definitely indicates that the land involved falls within the code definition of alluvion.
Carmel Martin, called upon a previous trial of the cause and whose testimony was admitted at the second trial upon stipulation of the parties, testified, in substance, that he was born near the mouth of the Carmel River in 1879; that he has always lived there except when away at school; that there is more sand now in the Otey property than there was in 1907; that it is higher up at the northern boundary and wider on the east and west; that the expanse of sand is *312 greater; that the dunes along the northern boundary have been gradually getting higher all the years; that after the sand lies there a while the brush starts to work through and the south winds start the sand moving; that it hits the brush and is precipitated, and the following year the brush reaches up through the sand and comes up above it; that that practice goes on year after year; that this is not true of the Otey property; that there is no brush on that, but that this practice takes place there because the winds blowing from the south start the sand moving and as it drifts up it deposits sand all along the line; that there is a gradual elevation all the way along the river to the top of the sand dune.
J.H. Stewart, whose previous testimony was also admitted upon stipulation, asserted that he had lived in Carmel Valley for fifty-nine years; that there has been little change in the mouth of the river in the last fifty-nine years; that sometimes it runs north and sometimes it runs a little south, but it has been for the most part in the same place it is now for the last fifty-nine years; that three or four times it went out well to the north; that it has been opened many times artificially; that the Otey place looked much as it does now fifty-nine years ago, but not so much sand; that there has been a gradual accretion during the years; that a hill has been raised north of the septic tank; that the wind has rolled up the sand and it stops on the brush; that the wind and sand have been raising that hill continuously since he was a boy; that there is more sand; that every year the sand-hill with the brush is higher.
Others testified substantially to the same effect.
[2] In addition, the trial court, by consent of the parties, went upon and viewed the lands and premises in dispute. InHatton v. Gregg,
We are not inclined to accept defendant's theory that the deposit did not result from natural causes but rather from certain artificial agencies located in the immediate vicinity. The septic tank and bunker to which defendant refers us had no existence prior to 1912 and 1914 respectively. Plaintiff's evidence, as already shown, goes back to 1873 and indicates that there has been but slight change in the premises in the past twenty years and that such change as has occurred has been from natural causes and by imperceptible degrees. Moreover, the court below, when viewing the premises, was in a position to readily ascertain and determine what effect, if any, artificial agencies had upon the change in the premises.
[3] In its judgment quieting plaintiff's title, the court below excepted any and all land lying below ordinary high-water mark. That portion, if any, lying below ordinary high-water mark was awarded to defendant, as successor in interest of the state, pursuant to section
We have examined other points and contentions made by the parties and find nothing requiring further discussion. What we have said sufficiently disposes of the cause. Examination of the record satisfies us that the judgment is eminently proper and it is affirmed.
Thompson, J., Curtis, J., Langdon, J., Preston, J., and Seawell, J., concurred.
Rehearing denied.