49 Cal. 607 | Cal. | 1875
The action is ejectment, and the principal contest is whether the demanded premises passed to the State as swamp and overflowed land, under what is known as the Arkansas Act. At the trial the Court sent the jury to view the premises in controversy, as authorized by section 610 of the Code of Civil Procedure; and at the close of the testimony, on the request of the plaintiff, gave to the jury the following, among other instructions:
“Ninth. The jury, under the order of this Court, proceeded to view and examine the lands in controversy, and they are at liberty, and it is their duty to give such examination made by them its due and proper weight in assisting them to determine the character of the lands on the 28th of September, 1850.
“Tenth. If the jury find from the evidence of the witnesses, and from their examination of the lands in controversy that it was such on the 28th day of September, 1850, that it was rendered unfit for cultivation by reason of its overflow, it would be overflowed lands within the meaning of the Act of that date, even though at that precise time it had been dry.”
These instructions are erroneous in so far as they authorized the jury to take into consideration the result of their own examination of the land, in determining its character as swamp and overflowed, or otherwise. In authorizing
Judgment reversed and cause remanded for a new trial. Remittitur forthwith.
Neither Mr. Chief Justice Wallace nor Mr. Justice McKinstry expressed an opinion.