Moore v. Massini

[390]By the Court,

Wallace, C. J.: The case was here in 1869, and is reported in 37 Cal. R. 432. It was then determined that the confirmation and patent to Hill were bounded on the south by the seashore— that is, by the line of high water—notwithstanding the calls and distances contained in the patent include portions of the sea. The judgment was then reversed and the cause remanded for a new trial, and the plaintiff having again recovered, the appeal now brought here is frotn the judgment alone, and rests upon the judgment roll containing the findings of fact, no statement upon appeal being found in the record. The only question made is as to whether or not on the second trial the Court below observed the distinction between land above and land below high-water mark upon the southern boundary of the rancho.

The Court found that the patent, according to the lines of the survey, by course and distance, included all that tract of land described in the complaint, to wit, bounded and described as follows: “ Commencing at the southeasterly corner of the rancho called ‘La Goleta;’ thence running along the eastern boundary line of the said rancho to the tract of land occupied by A. C. Scull, and the line of the tract occupied by Samuel Sharp, and along the bed of a creek to the eastern line of the tract now owned and occupied by the plaintiff; thence along the line of the last before mentioned tract of land southwardly, westwardly, and northwardly, to the bed of the creek; thence following the course of the bed of said creek to the Pacific Ocean and the front line of the survey of said rancho (beiiig the low-water mark); thence along the said front boundary fine of said rancho to the place of beginning.” •

The Court further found “that said patent recites that said confirmation was to a tract of land bounded on the south by the seashore; but the survey, as made and approved, [391]and upon which said patent is based, according to the courses and distances thereof, notwithstanding such recital, includes the land lying between the present line of ordinary high and low water;” and further, “that there are upon the premises described in the complaint large banks or veins of asphaltum, commencing in the bank many feet above the beach and the highest flow of the tides, and extending out in spurs connecting with the banks beyond the line of ordinary low water, and rising above the flow of the tides, and which are very hard and can only be removed by quarrying the same.” Further, that in 1858 and 1859 Hill, the grantor of the plaintiff, gave a verbal license to the defendant Pierce “to take from said veins asphaltum for the sum of one dollar per ton,” etc.; that Pierce and the other defendants under him took out asphaltum under this license until 1860, when Hill terminated it and gave it to other parties, who took asphaltum by Hill’s permission until 1861; but the defendants also continued to take out and remove asphaltum from said veins from July 1st, 1861, to May, 1864, against the will and without the consent of Hill; that the quantity of asphaltum thus taken by defendants was one thousand nine hundred and sixteen and seventeen one-hundredths tons, of the value of four dollars per ton; that in Hovember, 1864, Hill conveyed the premises to the plaintiff, with all claim for damages sustained by the taking of the asphaltum, etc. Judgment was thereupon rendered in favor of the plaintiff for seven thousand six hundred and sixty-five dollars and costs.