Hogaboom v. Ehrhardt

Ross, J.: The plaintiff sued in ejectment to recover the north-east quarter of section six, township five north, range five east, of Mount Diablo base and meridian, containing one hundred and eighty-one and thirty one hundredths acres of land, alleging herself to be the owner in fee thereof. The answer of the defendant consisted of a general denial only. On the trial the plaintiff introduced a patent from the United States to one Baldwin for lots numbered 1 and 2, and the south half of the fractional north-east quarter of said section 6, and a deed for the same premises from Baldwin to the plaintiff. Thereupon the defendant admitted his possession of twenty acres of the land described in. said patent lying south of a certain fence, for the possession of which twenty acres the plaintiff recovered a verdict and judgment. On both sides it is conceded that the land in question was originally public land of the United States, and it is not denied on the part of the defendant that the patent issued by the Government to the plaintiff’s grantor was regular in form. His contention is that the twenty acres included in the patent, of which he has possession, was swamp and overflowed land, and, therefore, passed to the State of California by virtue of the Act of Congress of September 28th, 1850, and that he, through mesne conveyances, has a certificate of purchase from the Register of the State Land Office for the south-east quarter of the said section 6, the lines of which quarter, he claims, were so run by the County Surveyor of Sacramento County (where the lands are situate), as to include the twenty acres in dispute; but the lines were so run, not in conformity, but in conflict with the United States surveys.

The first alleged error grows out of the circumstance that, on the trial, the defendant offered to prove by parol that the twenty acres possessed by him, and included within the plaintiff’s patent, “ was, on the 28th day of September, 1850, ever since has been and still is swamp and overflowed land, made thereby unfit for cultivation,” and was therefore granted [233]to the State by virtue of the swamp land grant of the date mentioned. This offer was rejected by the Court upon objections interposed by the plaintiff. The action of the Court in that respect is clearly sustainable on the ground that the defendant did not offer to prove that the greater part of any legal subdivision was wet and unfit for cultivation, and therefore swamp and overflowed land within the terms and meaning of the Act of Congress, but only that the twenty acres of which he held possession was of that character. Unless the twenty acres constituted the greater part of a legal subdivision, according to the Congressional system of surveys, they were not swamp and overflowed lands within the terms and meaning of the Act of Congress. (See the act, U. S. Stats., vol. 9, 519; also, Robinson v. Forrest, 29 Cal. 323.) It is not necessary, therefore, to determine the other points made by counsel respecting this ruling of the Court.