People v. Cowell

Ross, J.: The principal question in this case is, were the lands in controversy subject to sale under the laws of this State? And as respects this, appellant’s counsel says: “The only test was, is the land reclaimable?”

Applying that test, we have no difficulty in affirming the judgment of the Court below. The findings, which are not complained of, show that the tract, which embraces some sixty-eight acres, is a portion of the frontage of the bay of Monterey, which, for more than twenty-five years, has been, and still is, used for commercial and maritime purposes—being that portion of the frontage of the bay at which sea-going vessels trading with Santa Cruz touch, and load and unload; that much the greater portion of the land was, and is, permanently beneath the waters of the bay, and all of it, except some points and bluffs, comprising not over one or two acres, was, at the date of the survey and application under which the appellant claims, covered by the waters of ordinary tides; .that the whole of the tract (except the points above referred to) was and is loose, drifting sands, shifting with the action of the waves and winds; that none of the tract was, at the .time of the survey and application, or is now, of any value for agricultural purposes—“the only manner in which it could be made available for such purposes being to construct expensive levees or dykes, and transport to and cover it with soil,” and that the cost of so reclaiming and protecting the tract would greatly exceed its value when reclaimed for any purpose of tillage or agriculture.

The idea that land thus situated is reclaimable for agricultural purposes would at once strike any one off the bench as preposterous. We know of no reason why we should not enjoy the privilege of exercising a little common sense and take the same view of it.

The suggestion of the counsel for appellant, that we are [403]bound by the determination of the County Surveyor as to the character of the land, is without force. As is well said for the respondent, the official authority of the Surveyor, whatever be its nature and scope, was never set in motion. From Sections 3 and 7 of the Act under which appellant’s proceedings were had—Act of April 27, 1863, p. 592—it will be seen that the duty of the County Surveyor does not commence, nor can he officially act concerning any application, until the affidavit and application for a survey are officially put before him. In the present case the survey was made five days before appellant made any application therefor-or had taken or subscribed the affidavit required by the act. The survey, therefore, was but the survey of a private person and had no official sanction.