Edwards v. Rolley

Temple, C. — Plaintiff appeals from the judgment upon the judgment roll alone.

The action is brought to quiet title, and, the defendant being in possession, is therefore virtually an action to recover possession, sometimes called an action of ejectment.

The defendant denied plaintiff’s title, pleaded a former [410]judgment as a bar, set up title in himself, and also claimed that the plaintiff’s right of action was barred by the statute of limitations.

The action was tried without a jury, and the findings seem to state the facts quite fully.

The court found that neither plaintiff nor defendant had title to the demanded premises, and that plaintiff’s right was not barred by the judgment pleaded, or by the statute of limitations, and defendant had judgment.

The findings show that on the 28th of September, 3 850, and prior thereto, the demanded premises were in the bed of Eel River, a navigable stream; that the land in that township was public land of the United States, and was surveyed by the land department by meandering both banks of the river, thus excluding the bed of the river from the survey.

Defendant was the owner of a tract of land purchased from the state as lieu land, the application to purchase which was made November 22, 1858, at which time Eel River bounded it on the south and west, the land described in the complaint then being the bed of the stream bordering upon these lands. During the winter of 1861-62 the river suddenly changed its course, forming a new channel, and the water ceased to flow in the old channel. Each succeeding freshet' brought down sediment, which filled up somewhat the original channel, forming the land in controversy.

One John L. Pixley made application to purchase these lands from the state as swamp and overflowed lands, June 14, 1886, upon which application a patent was issued October 17,1888. Under this patent plaintiff claims title.

The land in controversy, then, was the bed of a navigable stream until 1861. It was not acquired from the United States as swamp and overflowed land under the act of September 28, 1850. Many sections of the Political Code show plainly that no other lands are included under the designation “ swamp and overflowed ” in the statutes authorizing the sale of state lands. This land