JAMES MARTIN et al., Respondents, v. J. B. H. COOPER et al., Appellants, 87 Cal. 97

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 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 location and general course of that old bank so that it may be traced with reasonable certainty and accuracy.

It does appear affirmatively that the surveys made on the part of the plaintiffs, for the purposes of this trial, were not made, or attempted to be made, on or along either bank, and that the surveyors were not instructed so to make them. Their instructions were, to survey and plat the courses and distances as given in the patent; and they were not instructed to find, or to attempt to find, the old bank of the river.

And they did not even follow these instructions, but, instead, they, surveyed and ran the courses and distances along the river bank as given in the patent of the rancho Moro Cojo, and platted the same, and then, for the purpose of establishing the line of the rancho Rincon de las Salinas, they laid it off upon the map by a line parallel to the line of the Moro Cojo, so surveyed, and a uniform distance of seven chains therefrom, — allowing that to be the width of the river running between the two ranchos; and this, even though the witnesses testified that the .river, now and of old, varied in width at different points.

We do not think that such testimony as this will support a finding, either that the left bank of the river cannot be found and traced, or that the survey adopted as and for that boundary is correct. The engineer who made this survey and map himself says that he would not have made it as he did if he had been instructed to find and survey the river bank. On the other hand, another engineer, who seems to be . equally competent and disinterested, testifies that he has examined the banks and course of that river, and that, in his opinion, the old bank can be found and traced.

He has made a plat, showing the present bank, and. points out divers places where the line of the old bank is distinctly traceable.

His evidence is perhaps not sufficiently full, and his work not sufficiently complete, to furnish the basis of a finding for a final settlement of the case; but, to our minds, it confirms a conclusion already reached, from the testimony given on the part of plaintiff, upon whom the burden rested, that the evidence is insufficient to support the findings, either that the survey of courses and distances adopted is accurate, or that circumstances existed which authorized the adoption of courses and distances in place of the natural monument. The judgment and order must therefore be reversed, and it is so ordered.

Thornton, J., and Paterson, J., concurred.