People v. Henderson

40 Cal. 29 | Cal. | 1870

Temple, J.,

delivered the opinion of the Court; Crockett. J., BiHODES, C. J., and Wallaoe, J., concurring. .

By an Act approved February 13, 1868, the Legislature, established the permanent boundary between the counties of Stanislaus and Merced. The first line called for in that Act is from a monument “ at the southwest corner of Tuol-umne County and the southeast corner of Stanislaus County, in a straight line to a point on the San Joaquin River, seven miles below the mouth of the Merced River. ” By the second section of the Act the County Surveyors of the two counties were required, within ninety days after the passage of the Act, to survey and mark the line as established. The surveyor of- each county complied with this requirement, but the surveyor of Stanislaus County run the first line to a point on the San Joaquin River, seven miles below the mouth of Merced River, measured by the meanders of the San Joaquin River, while the surveyor of Merced County run to a point on the San Joaquin River seven miles below the mouth of the Merced, measured in a straight line. The defendant lives between these two points, and this suit is brought to collect .taxes assessed against him in Merced County for the fiscal year 1868. The defense is that the land against which the taxes were assessed is in Stanislaus County, and had been duly assessed in that county and the taxes paid.

There seems to be no conflict whatever in the authorities, that where a certain distance is called for from a given point on a navigable stream to another point on the stream, to be ascertained by such measurement, the measurement must be made by its meanders and not in a straight line, and the same rule prevails when distance is called for upon a traveled highway. A different rule is sometimes adopted when the stream is not navigable. When a tract of land is bounded upon a navigable stream, the distance upon the stream will be ascertained — in the absence of other controlling facts — by measuring in a straight line from the opposite boundaries.

The San Joaquin River has been declared navigable to Tulare Lake, and there is nothing in the Act in question to indicate that a different rule was intended to be adopted to ascertain the line in controversy.

We think it very plain that the Act was operative to establish the boundary as indicated at once, upon its passage, and was not dependent upon tbe surveys. Tbe surveys were intended to mart tbe line wbicb bad been established by tbe Legislature. It follows that, at tbe time tbe taxes were levied, tbe land described in tbe complaint was not in Merced County, and tbe taxes assessed in tbat county never became a lien.

Judgment and order affirmed.

Sprague, J., expressed no opinion.