(149 Cal. 511) GLASSELL et al. v. HANSEN .et al. (Sac. 1,370.)

(Supreme Court of California. July 31, 1906.) APPEAL-REVERSAL-SCOPE OF ISSUES.

Plaintiff claimed the land in controversy as an accretion to his land, which was bounded by a river, and defendant claimed that the land first appeared as an island in the river and grew by accretions until the channel between the island and plaintiff's land was nearly filled up. The court found for defendant, and on appeal it was held that the evidence justified the finding, but that the court erred in not awarding plaintiff a strip of land included in the complaint and not a part of the island. The judgment was merely "Judgment and order reversed." Held, that on the next trial plaintiff was entitled to prove his original claim. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4713.]

In Bank. Appeal from Superior Court, Solano County; A. J. Buckles, Judge.

Action by Hugh Glassell and others against Ross Hansen and others. From a judgment in favor of defendant IIansen, and from an order denying a new trial, plaintiffs appeal. Reversed.

George A. Lamont, Frank R. Devlin, and McNutt & Hannon, for appellants. A. C. Freeman, for respondents.

MCFARLAND, J. At the time of the commencement of this action the plaintiffs were, and for a great many years prior thereto they and their predecessors in interest had been, the owners in fee of a tract of land in Solano county known generally as the "Toland Ranch," and having as its eastern boundary what at the time of the inception of their title, and for many years after, was the western bank of the Sacramento river. After plaintiffs had become the owners of the Toland ranch the Sacramento river in front of said ranch commenced to fill up with alluvial deposits which increased in size from year to year until at the time of the bringing of this present action (May 23, 1899), the "made" land in what was formerly a part of the river, and in front of said ranch, amounted to about 140 acres. This present action was brought to recover this made land; the averments of the complaint being that plaintiffs were seised in fee and entitled to the possession thereof, and that defendants had entered thereon and ousted plaintiffs therefrom. The complaint was not verified, and the defendant Ross Hansen filed an answer in which he "denies each and every allegation in the plaintiffs' complaint contained"; and he afterwards filed a supplemental answer, in which he averred that the land in contest was swamp and overflowed land belonging to the state, and that the state in 1885 conveyed said land by a patent to one Kate Nelson, from whom the title by mesne conveyances vested in said defendant. The other defendants disclaim. The court, on

the trial out of which this present appeal arises, gave judgment for defendant Hansen. Plaintiffs made a motion for a new trial, which was denied, and from the order denying the motion for a new trial plaintiffs now appeal.

There had been a prior trial of the case, and an appeal from a judgment in favor of defendants and from an order denying plaintiffs' motion for a new trial. See Glassell v. Hansen, 135 Cal. 547, 67 Pac. 964. At the first trial plaintiffs claimed title upon the theory that the said made land in the river was the result of accretions to plaintiffs' said land lying on the west bank of the river, and, therefore, by a well-established principle, belonging to them as owners of the land to which the made land was thus annexed. Defendants' position was that the origin of this new land was an island which first appeared near the center of the river; that for a time this island divided the river into two nearly equal streams-one flowing to the east and the other to the west of the island, each large enough for the passage of steamboats; that gradually the island, which was called "Decker Island," grew by accretions to its western side until the western stream of the river became nearly filled up, although there still remains between the island and the mainland a depression or slough which plainly divides the one from the other, and that the accretions were all to the island, and not to the Toland ranch on the mainland; and that therefore the new land was, under section 1016 of the Civil Code, the property of the state, and did not become part of plaintiffs' mainland by accretion. At the first trial the court found in accordance with defendants' contention and rendered judgment accordingly. Plaintiffs appealed from that judgment, and also from an order denying their motion for a new trial. This court disposed of the appeals by holding that the trial court was right in finding that the land in contest, outside of the calls of the original patent of the Toland ranch, was an island, and did not belong to plaintiffs by accretion, but that the court erred in not giving plaintiffs judgment for a strip of land described in the complaint which was not part of the island; and for this latter reason the judgment and order denying a new trial were reversed.

When the case came on to be heard at the second trial, out of which this present appeal arises, the plaintiffs offered to introduce evidence tending to support their original claim that said made land consisted of accretions to the said mainland; but the court refused to allow them to introduce such evidence upon the ground that the judgment of this court on the first appeal had finally determined that the new or made land in the river was an island, and not formed by accretions to the mainland owned by plain

tiffs. This ruling was clearly erroneous. On that appeal this court merely held, as matter of law, that if the land was an island with its accretions, and was not made by accretions from the mainland, then it did not belong to plaintiffs, and that on the said first trial the evidence justified the finding of the lower court that the land was an island. But the court reversed the judgment and order denying a new trial upon another ground, namely, that there appeared to be a small strip of land included in the complaint and belonging to plaintiffs which was not part of the island, that the court had not found that the defendant was not in possession of that strip, and that therefore the judgment and order must be reversed. In reversing the case this court might have directed what issues should again be tried, and what should be deemed finally settled by the first trial. However, it did not do so, and the judgment was merely in the general terms "the judgment and order are reversed." This clearly left the whole case to be tried anew, as if it had not been tried before. Falkner v. Hendy, 107 Cal. 54, 40 Pac. 21, 386, and cases there cited. Of course, the law of the case was settled to be that islands formed in the beds of rivers belong to the state and not to the owners of land fronting on the river bank; but the question whether or not the land in contest in the case at bar was an island or was formed by accretions from the mainland was as fully at issue at the second trial as at the first.

The learned counsel for respondents contends that the court did not limit the evidence as above stated; but this contention cannot be maintained. At the beginning of the statement on motion for a new trial the following appears: "After a discussion between the court and counsel as to the issues to be tried, the court held that, under the decision of the Supreme Court in this case (135 Cal. 547, 67 Pac. 964), the issues as to the island are settled, and that no testimony is to be introduced on that subject. The Court (after reading the said decision of the Supreme Court): Proceed with your testimony. I see no reason for opening that again. There will not be any testimony on the island part at all. That I think is sufficiently settled by this decision. Mr. McNutt (appearing for plaintiff): We want to reserve the question, of course. I suppose the regular way would be to introduce the witness and offer proof. The Court: Suppose you offer a witness and make statement of what you propose to prove by this witness then you could get your objection to the ruling of the court. Thereupon, E. C. Dozier was called as a witness for the plaintiffs. (Explanation, and the map used on a former trial is brought in and affixed to the blackboard.) The witness testified that he

knew the land in controversy since 1869, and knew the Sacramento river since that time, and knew there had been some filling in of the river since he resided there, and that he had opportunities of observing how the river had filled in. Q. By Mr. Lamont (attorney for plaintiffs): Now I wish you would explain to the court how that has taken place there with regard to this land in controversy. Mr. Freeman (attorney for defendant): I object, now, that it appears that the testimony is to be respecting land in the Sacramento river, to which plaintiffs have shown no title or claim of title. The testimony of the witness should be excluded until there is some evidence. Mr. Lamont: Of course, we will follow that. Mr. Freeman: It seems to me that it ought to precede it, although it is in the discretion of the court at last. The Court: What is the purpose of this testimony? Mr. Lamont: The purpose is to show that this is accretions from the mainland. We will follow that by the patent and deraignment of title, of course, from the government down to the plaintiffs in this action. The Court: As I understand it, you propose by this witness to show that this piece of land in controversy-all of it— is accretions to the land to which it is now joined. Mr. Lamont: Yes, or, at least, a portion of it. The Court: In other words, the purpose is to show that this piece of land in controversy, which has been called an island by the Supreme Court, is, in fact, not an island, but is accretions to the land of your client. Mr. Lamont: That is our idea."

There were further offers and discussions similar to the preceding, and the court sustained objections to the testimony. The foregoing shows, we think, very clearly that the court excluded evidence as above stated, and the effect of the ruling was not changed because afterwards plaintiffs were allowed to introduce evidence tending to show that "if the land grows both ways from the land side and from the island side" a certain part of the land in contest was comprised of accretions from the land side. Plaintiffs should have been allowed to show, if they could, that all the land in the river in front of their land was formed by accretions from their land. Plaintiffs sought, also, to show title to the land in contest by prescription, claiming to have been in the actual and adverse possession thereof for more than five years before the commencement of the action. There was a good deal of evidence introduced by both parties on this issue of plaintiffs' title by prescription. We do not deem it necessary to notice such evidence in detail. It is sufficient to say that plaintiffs failed to show such title by actual possession, by pasturing of stock, or by any other means; and, as this issue was fully and fairly tried, we do not think that it would be right or just to compel defendant to try it over again.

A new trial will, therefore, be ordered only as to the question: Was the made land in contest formed by an island and its accretions, or by accretions from the mainland?

The order denying plaintiffs' motion for a new trial is reversed, and the cause is remanded for a new trial on the sole issue whether the made land in the Sacramento river opposite plaintiffs' tract of land called the "Toland Ranch" was formed by accretions from the mainland belonging to plaintiffs, or whether said made land appeared as an island and grew from accretions to such island.

PARTY.

An instruction that the jury should receive the testimony of the defendant's employés the same as the testimony of any other witness, and determine the credibility of such employés by the same principles and tests as would be applied to any other witness, was erroneous and properly denied.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 1187.]

Appeal from Superior Court, Los Angeles County; B. N. Smith, Judge.

Action by C. F. Murray against the Llewellyn Iron Works Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones & Weller and Davis, Rush & Willis, for appellant. Russ Avery and Anderson & Anderson, for respondent.

SMITH, J. Appeal from a judgment for the plaintiff and an order denying the defendant's motion for a new trial. The plaintiff is the owner of a building and lot fronting on Los Angeles street, adjoining the Huntington Building, which extends from Los Angeles street to Main street and abuts on the north on Sixth street; and he brought this suit for damages to his building and other property on his lot from fire, alleged to have been

caused by the negligence of the defendant's. servants, who at that time were engaged in working on the Huntington Building. There was no direct proof of the origin of the fire, which occurred in the early hours of the 6th of October; but it appears from the evidence that the work on which the defendant's employés were engaged required the use of rivets heated to a white heat, which were habitually thrown from the heater to the riveter and caught for the latter in a bucket. It sometimes happened, however, that the rivets were not caught, but, while the men were working on the south side of the building, would sometimes fall over the line onto the land of the plaintiff, or the land of his neighbor adjoining on the rear. It was in proof that this happened twice on the morning of the 5th, between the hours of 10 and 12 o'clock, the rivet falling, on one occasion, on the lot adjoining just to the rear of plaintiff's lot, and the other across the fence on his lot; and on each occasion a fire was started, which was extinguished by the defendant's employés. Evidence of similar occurrences upon other occasions before and after the fire was also given. The plaintiff's theory is that the origin of the fire in question was similar to that of the fires that had thus occurred, and much evidence was introduced to exclude the probability of its having originated otherwise.

Numerous points are urged by the defendant, but we think they are all untenable. The evidence as to the origin of the fire was, indeed, circumstantial only; but it was not on that account inadmissible (Code Civ. Proc. § 1832), and we think it was sufficient to sustain the verdict. The instruction complained of does not instruct the jury as to the weight of evidence, but simply that they were to consider the facts in evidence "in determining whether or not the fire referred to in the complaint *** was due to the same cause." Nor did the court refuse to instruct the jury that "defendant's employés were entitled to due credit as witnesses." The request of the defendant was that the jury should be instructed "to receive the testimony of such witness * *the same as that of the testimony of any other witness, and to determine the credibility of such employé by the same principles and tests by which they would determine the credibility of any other witness," which would have been manifestly

erroneous.

There are some other objections on the part of appellant, but we deem it unnecessary to consider them. On the whole, we find no error in the record.

The judgment and order appealed from are affirmed.

We concur: GRAY, P. J.: ALLEN. J.

(4 Cal. App. 76)

SOUTHERN PAC. R. CO. v. BOVARD. (Court of Appeal, Second District, California. July 9, 1906.)

PUBLIC LANDS-RAILROAD GRANTS-INDEMNITY LANDS-SELECTION.

The determination by the United States Supreme Court that the grant to the Southern Pacific Railroad Company by Act Cong. March 3, 1871, 16 Stat. 573, c. 122, did not include land within the limits of the grant made by Act Cong. July 27, 1866, 14 Stat. 292, c. 278, to the Atlantic & Pacific Company, refers only to lands within the 20-mile limit of the Southern Pacific Railroad Line falling within the like limits of the Atlantic & Pacific, and does not apply to indemnity lands to which the title accrues only on selection, and which may be selected from any public lands of the United States within the indemnity limits.

Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

Action by the Southern Pacific Railroad Company against M. M. Bovard. From a judgment for plaintiff, defendant appeals. Affirmed.

M. C. Hester, for appellant. William Singer, Jr., and Guy Shoup, for appellee.

SMITH, J. The suit was brought to foreclose the rights of the defendant under a contract for the sale of the land in question, made by the plaintiff to the defendant March 9, 1887. Judgment was entered in favor of the plaintiff, requiring the defendant to pay the plaintiff the sums due on the contract, amounting to $2,681.19, with interest, etc., within 30 days of the date of the decree, or otherwise to be foreclosed of his rights under the contract. The defendant appeals from the judgment.

By the terms of the agreement the plaintiff agreed to sell and the defendant to buy the land described in the contract for the sum of $1,536.70, payable with interest, as follows: $307.34 and one year's interest in advance on the remainder, $86.06, on the execution of the contract; and the balance, with interest at 7 per cent., March 9, 1892. It was further provided that a deed should be executed upon receipt of a patent, and, in case it should appear that plaintiff was not entitled to a patent, all moneys paid should be returned without interest. The defense is, in effect, that it has been finally determined by the decisions of the Supreme Court of the United States that plaintiff is not entitled to a patent; and in a cross-complaint the defendant seeks to recover the amount paid under the contract. The land in question "is within the place limits of the grant made to the Atlantic & Pacific Railroad Company by act of Congress approved July 27, 1866 (14 Stat. 292, c. 278), and is also within the indemnity limits of the grant made to the Southern Pacific Railroad Company by act of Congress approved March 3, 1871 (16 Stat. 573, c. 122), and was selected by said Southern Pacific Railroad Company in due form under the act of March 3, 1871." This selec

tion was approved by the register and receiver of the United States land office at Los Angeles on October 3, 1887; but it appears from the stipulation that the selection was set aside by order of the Secretary of the Interior and the Commissioner of the General Land Office on April 15, 1898, and the lands included in the selection, including the land in controversy, restored to the public domain. It is found by the court that it has not been determined, by the decisions of the Supreme Court of the United States or otherwise, that plaintiff is not entitled to a patent; and whether upon the facts stipulated this finding can be sustained is the only question involved. The contrary is claimed by the appellant upon the authority of U. S. v. S. P. R. R. Co., 146 U. S. 570, 13 Sup. Ct. 152, 36 L. Ed. 1091, Id., 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104, and Southern Pac. R. R. Co. v. Painter, 113 Cal. 251, 45 Pac. 320; where it is held, in effect, that the grant to the Southern Pacific Railroad Company by the act of March 3, 1871, did not include land within the limits of the grant made by the act of 1866 to the Atlantic & Pacific Company. But these decisions refer only to lands within the 20-mile limit of the Southern Pacific Railroad falling within the like limits of the Atlantic and Pacific.. They have no application to indemnity lands, to which the title accrues only upon selection, and which may be selected from any public lands of the United States within the indemnity limits. U. S. v. S. P. R. R. Co., 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104; S. P. R. R. Co. v. U. S., 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307; Ryan v. Railroad Co., 99 U. S. 382, 25 L. Ed. 305; Southern Pac. Co. v. Lipman (Cal. Sup.) 83 Pac. 445.

We are of the opinion that the judgment must be affirmed, and it is so ordered,

We concur: GRAY, P. J.; ALLEN, J.

(4 Cal. App. 94) WYCKOFF v. SOUTHERN PAC. CO. (Court of Appeal, Second District, California. July 10, 1906.)

TRIAL INSTRUCTIONS AS TO MATTER OF FACT. Under Const. art. 6, § 19, providing that judges shall not charge with respect to matters of fact, but may state the testimony and declare the law, it is error to charge that the fact, if found, that the engine colliding with a team at a crossing was running 35 miles an hour does not establish negligence.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 442-445.]

Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Action by Will E. Wyckoff against the Southern Pacific Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

J. W. McKinley, for appellant. Charles H. Mattingly, for respondent.