Packer v. Bird

This is an action for the possession of an island, embracing about 80 acres of land, in the river Sacramento, within the county of Colusa, in the state of California. The plaintiff alleges ownership of the premises in 1867, and their continued ownership afterwards, the entry of the defendants thereon in January, 1883, without right or title, and their continued unlawful possession thereof ever since, to his damage of $200. The answer of the defendants is a general denial of the allegations of the complaint. The issues were tried by the court without the intervention of a jury, by stipulation of the parties. The court found for the defendants, and directed judgment in their favor. A motion for a new trial was denied, and on appeal to the supreme court of the state the judgment and the order refusing a new trial were both affirmed. To review that judgment the case is brought to this court. The river Sacrament to is navigable from its mouth or outlet to a point above the premiss in controversy. Indeed it is one of the great rivers of the state, and is navigable over 250 miles. The muniments of title introduced by the plaintiff consisted of a patent of the United States issued in December, 1857, to Francis Larkin and others, for a tract of land in the county of Colusa known as the 'Rancho of Larkin's Children;' a decree partitioning the land among the patentees, and intermediate conveyances from one of them of the plaintiff. In June, 1857, a survey of the land covered by the patent was made by the proper officers of the United States pursuant to a decree of the district court of the United States for the northern district of California, rendered in January, 1856, confirming an imperfect Mexican grant of the tract, and ascertaining and determining its location. That decree describes the land as follows: 'Commencing at the northerly boundary line of said rancho, at a point on the Sacramento river, just two leagues northerly from the rancheria called 'Lojot,' and running southerly on the margin of said river to a point which is five leagues south of the place of beginning; thence west two leagues; thence north in a parallel line with said river, and two leagues therefrom, five leagues; and thence east two leagues to the place of beginning, and so as to contain the area of ten square leagues within said lines.' The survey, which is incorporated in the patent, describes the eastern boundary line of the tract as commencing at a certain oak post 'on the right bank of the Sacramento river,' and thence 'traversing the right bank of the Sacramento river down stream' certain courses and distances. Among other things, and court found that from 1853 to 1858, and both prior and subsequent thereto, the waters of the Sacramento river divided into two streams at the upper or northerly end of the island in controversy; that one of the streams flowed through a channel extending around the easterly side of the island, and the other through a channel extending around the westerly side; that during this period both of the channels were plain and well defined, and had high banks, and the waters of the river flowed, and still continue to flow, through both of them at all seasons of the year; that the two channels and streams of water reunited at the lower or southerly end of the island, and that each of the channels and streams constituted a part of the Sacramento river, which was navigable, 'both in fact and by statute;' that, during the greater portion of each year, the channel on the westerly side of the land in dispute was navigable, and was during the perid m entioned actually navigated; but that the usual and most direct route for steamers was along the channel running east of the island.

W. C. Beecher, for plaintiff in error.

[Argument of Counsel from pages 664-666 intentionally omitted]

FIELD, J.