Martin v. Cooper
Before: Beatty, Fox, McFarland
Synopsis
Boundary — Change in Banks of River — Survey—Courses and Distances— Width of Stream — Finding against Evidence. — Where adjoining tracts of land were separated by a river, and the patent to each tract was bounded by the bank of the river upon the side upon which the tract was situated; and the court below found that the-river had so changed its channel that the location of the banks as they formerly existed could not be found or traced, if the evidence shows that the river varied in width at different points, a finding in favor of the correctness of a survey by courses and distances along the supposed original bank of the river as called for by defendant’s patent, and laying off upon a map a line parallel thereto at a uniform distance therefrom as the boundary of plaintiff’s tract, is not sustained by the evidence, and such erroneous finding is ground for reversal of a judgment in favor of plaintiff.
Opinion — Fox
Fox, J. This is an action to quiet title to a tract of land which the plaintiffs allege lies within the rancho Rincon de las Salinas, of which they are the owners, as tenants in common, seised in fee. The defendants deny that the plaintiffs are the owners of said tract of land, and aver that the same is a part of the rancho Moro Cojo, of which the defendants are the owners in fee. The court found in favor of the plaintiffs upon all the material issues, and decreed accordingly. Defendants moved for a new trial, which was denied, and from that order, and from the judgment, defendants appeal.
It was incumbent upon the plaintiffs "to prove that the lands in controversy are within the rancho Rincon de [98]las Salinas. Whether they are or not depends upon the location of the northeasterly line thereof, which, according to the patent issued to the plaintiffs' grantor, is along the left bank of the Salinas River. The rancho Moro Cojo, under which defendants claim, lies upon the opposite side, and is bounded by the right bank of the river. The patent of neither rancho calls for the other as a coterminous boundary, but each is described as being hounded, along the sides which are nearest each other, by the river, one by the left bank and the other by the right ban]£, and in each courses and distances are given as the meander line of the bank referred to. In each case, if the bank can be found, courses and distances must yield to the natural monument. The survey for the patent of the rancho Rincon de las Salinas was made in 1861; that for the patent .of the rancho Cojo, some three years earlier.
The court finds that since these surveys the course of the river has been subjected to several sudden, violent, and considerable changes, caused by freshets cutting away its banks and changing its channel. There is evidence sufficient to support this finding. But the court also finds that the left bank of the river, as it existed in 1861, cannot now be found or traced, and it therefore assumes to adopt the courses and distances given in the patent as establishing the boundary line, upon the theory that this is the next best evidence that is attainable for the purpose. The theory is correct, if the facts warrant its adoption; but we do not tbinlc that the evidence supports the finding that the left bank of this river, as it existed in 1861, cannot now be found or traced. While the testimony given on the part of plaintiffs shows that there has been a marked change in Lhe course and banks of the river, and there is some evidence tending to show that at certain points the old banks have been washed away, it does not appear, even from this testimony, that there is not left sufficient evidence of the
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