Connelly v. Mon Chung

BELCHER, J. — The action is ejectment to recover the possession of a lot of land described as lot 2 of block 280, in the city of Yallejo. At the trial the plaintiff deraigned title to the demanded premises under a patent from the state of California purporting to convey twenty-five and eighty-eight hundredths acres “of state tide lands,” bounded on one side by a line drawn along the “bank” of Napa bay, and on the other by “the line of low-water mark at spring .tide,” and having a width at one end of three and forty-five hundredths chains and at the other of four and seventeen hundredths chains.

The patent bore date April 3, 1863, and purported to have been issued under the provisions of the act of the legislature of the 21st of «April, 1858, entitled “An act providing for the sale and reclamation of the swamp and overflowed lands of this state. ’ ’ The plaintiff also proved that the lot in question was tide land situate between the lines of ordinary high and low tides.

No testimony being offered on the part of the defendant, the court r.'ndered judgment against the plaintiff on the ground that he had failed to show any legal right or title to the premises sought to be recovered.

The appeal is from the judgment and from an order denying the plaintiff’s motion for a new trial.

[749]The appellant insists: first, that the act of the 21st of April, 1858, authorized the officers, who were charged with the duty of selling and conveying the state’s lands, to sell and convey the particular lands described in the patent; second, that if that act did not authorize the sale of these lands, still that the sale was ratified and confirmed by the act of the 14th of May, 1861, entitled “An act to provide for the sale of the marsh and tide lands of this state,” or if made after the date of that act, that it vims authorized by it; and third, that the defendant, having failed to show himself in privity with the source of title to the lands, cannot be heard to contest the validity of the patent.

In People v. Morrill, 26 Cal. 336, a patent had been issued by the state for one hundred and sixty acres of land described as state tide lands and situated in part upon the sea beach between the lines of high and low water mark and in part under the waters of the ocean. The patent purported to have been issued under the act of April 21, 1858, and it was claimed in that case, as in this, that the sale and patent were authorized by that act, and if not by that act, then by the act of May 14, 1861. After a very full and exhaustive consideration of the scope and effect of both acts it was held by the court that nothing was offered for sale by the former act, except the swamp and overflowed lands which the state holds under the grant by Congress of September 28, 1850, and such channels of greater or less width, through which the tide ebbs and flows, as are found threading the lands denominated “salt marsh” lands. It was also held that the act of May 14, 1861, authorized the sale only of such tide lands as are capable of reclamation, and not such as are irreclaimable in character.