Glassell v. Hansen

COOPER, C.

Action in ejectment. Defendants had judgment, and plaintiffs appeal from the judgment and order denying their motion for a new trial.

The plaintiffs deraigned title through a United States patent, issued to John Bidwell in 1866, to a tract of land, described in said patent, on the western bank of the Sacramento River,, having said river for its eastern boundary. This patent was founded on a Mexican land grant, made in November, 1844, purporting to grant a tract of land containing four square leagues, known as Ulpinos, duly and finally confirmed by the United States courts. Sacramento River is, and was at all times named herein, a navigable stream. There is no question but that the patent conveyed the land therein described, having for its eastern boundary the western bank of said river at ordinary high-water mark.

The main controversy here is as to about one hundred and forty acres of land formed by accretions in the said river, mostly after the issuance of the' patent. The facts cannot be more fully and concisely stated than the following contained in the statement on motion for a new trial,—to-wit:—

“The land lying easterly of the old river bank is known as ‘Decker Island,’ and is situated in what was the Sacramento River. At the point where this island now is, prior to the year 1853, the river extended uninterruptedly from the east bank, which was the west line of Sherman Island in the county of Sacramento, the west bank of Solano County, which was the east line of the Toland land, now the property of plaintiffs, and there was no interruption whatever in navigation in all this wide expanse of water. By 1855 the island began to appear at low tide, and was in the middle of the' river or near that, with well-defined channels on each side. The-island slowly increased, but the channels both remained intact, and were adequate for all purposes of navigation. After 1862 a rapid change took place, by reason of drift attaching itself to the uppermost part of the island. From

[549]

the start the island grew in a westerly direction, by reason of accretions to that side, but the channel on the west side, the west bank of which was plaintiffs’ land, was up to 1867 deep and wide enough to permit the passage of large steamers through it. In that year about fifteen acres of land was visible. The island continued growing towards plaintiffs’ said land,—in 1871 was half as large as now, and the channel between it and plaintiffs’ said land was thirty to fifty feet wide and still navigable for scows and fishing-boats in close to the west bank, which bank had remained the same as when the island began to form. In 1872 it was two feet deep at low-water mark, but remained of considerable width and was still navigable for small sloops. There was then from fifty to seventy acres in the island, but was usually covered at high tide. The channel was finally closed to navigation, by reason of the growth of accretions to the island about the year 1877. It will thus be seen that for years after the island was first visible it was entirely disconnected from the mainland, and that between them flowed a large, deep stream of water, adequate for all the purposes of navigation for sail and steam vessels navigating the Sacramento River. Depressions the full length of the island still mark the place where the channel was, and the old western bank of the Sacramento River is still visible.