Upham v. Hosking

Thornton, J.: Action to recover possession of certain lands described in the complaint, situate in the County of Solano. The plaintiff had judgment. Defendant moved for a new trial, which was denied, and he prosecutes this appeal from the judgment and order just mentioned.

As to a portion of the land sued for (part of Swamp Land Survey No. 17), on which was a portion of a building, it is admitted that the title was in one Brown, and that the conveyance from him to plaintiff passed to the latter Brown’s title to that portion of the lot which was covered by the building, unless excluded from the operation of the conveyance by a reservation contained in it of “the wharf and wharf franchises.” On the premises in controversy was a wharf and a part of the building above mentioned.

It is contended here that this building constituted a portion of the wharf, and was embraced in the reservation aforesaid, and, therefore, did not pass to the plaintiff under Brown’s conveyance.

On an examination of the evidence, we are of opinion that this contention is untenable, that the building did not constitute a part of the wharf, and was not, therefore, reserved from the operation of the deed.

As to the remaining portion of the premises sued for, the [256]defendant claimed under a grant on certain conditions made to one Collins, in which grant it was provided that on failure to comply with the conditions, all the rights granted by the Act should become forfeited to the State. The Court below found and held that there had not been a compliance with the terms of the grant, and that all rights under the Act had been forfeited to the State before the accrual of the title claimed by plaintiff. This matter will be better understood from the findings of the Court in regard thereto. They are as follows:

“As to the affirmative matter alleged in defendant’s answer, the Court finds: That a private statute of the State of California was enacted by the Legislature thereof entitled and approved as alleged in said answer, the whole of which statute is contained in the printed statutes of California for the year 1861, on page 300 thereof. That by the terms thereof there was granted to one C. J. Collins, his associates and assigns, for the term of twenty years from the date of May 6, 1861, the right to establish a ferry across the upper end of Suisun Bay, from the point known on Ringold’s map of Suisun Bay as 'Point Collberg’ in Solano County, to a place known as New York, in Contra Costa County, and said parties were also authorized to construct a wharf at each of the landing places of said ferry, one in Solano County and one in Contra Costa County, which wharves were required by said Act to be substantially built, of such materials and of such dimensions as to make said wharves sufficient for all the purposes of a steam ferry as well as for the local business of the two points; and from time to time said wharves were required to be enlarged as the commerce of the places might require.