Opinion
Department One
Appeal from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial.
COUNSEL:
P. F. Hart, and J. D. H. Chamberlin, for Appellant.
S. M. Buck, and George D. Murray, for Respondents.
The accretion formed on the bank of the island became the property of the defendants, although the stream had become greatly diminished and unnavigable. (Benson v. Morrow , 61 Mo. 353; Tappendorf v. Downing , 76 Cal. 169; King v. Young , 76 Me. 76; 49 Am. Rep. 596.)
JUDGES: Beatty, C. J. Works, J., and Paterson, J., concurred.
OPINION
BEATTY, Judge
This is an action to recover land formed by accretion. Defendants had judgment in the superior court, from which, and from an order denying a new trial, the plaintiff appeals. The essential facts out of which the controversy arises, and upon which its solution depends, are these: Eel River flows westerly. Before reaching the ocean it divides into two channels, the main channel being on the north, and the smaller channel, known as Eastlake Slough, being on the south. Between these two channels is a body of swamp land of several hundred acres, called Cock Robin Island. When the township embracing this portion of the river and Cock Robin Island was surveyed by the United States surveyor, the south bank of Eastlake Slough was meandered for some distance to the west of the eastern extremity of the island, to a point where it entered the swamp land. The north bank of the main river was also meandered. On the official plat of the township both channels of the river were delineated, and Cock Robin Island was shown as swamp land. After this survey the grantors of plaintiff acquired from the United States land on the south bank of Eel River, a short distance east of the eastern extremity of Cock Robin Island, the northern boundary of the subdivision so acquired being, of course, Eel River. The grantors of the defendants acquired from the state of California, as swamp land, Cock Robin Island, their southern and northeastern boundaries being the two channels of Eel River, the main channel on the north, and Eastlake Slough on the south. In the course of years changes have occurred in these channels. The main channel of Eel River, from a point some distance above the lands of plaintiff, now flows considerably to the northward of plaintiff's lands, which on the eastern side have been correspondingly extended by accretion. But at the same time that this change has occurred Eastlake Slough has been wearing away its south bank, and the point at which it divides from the main channel has been (gradually, as we understand the testimony) moving to the eastward; or in other words, the eastern extremity of Cock Robin Island, which like a wedge divides the two channels, has been gradually pushing up stream, as the result of natural accretion, [21 P. 537] until at the commencement of this action it covered the whole northern front of plaintiff's lands, interposing between them and the main channel of Eel River. It also appears that Eastlake Slough has gradually diminished in size, and has become unnavigable for small boats, except at high tide, but at the same time there is evidence that it has at all times continued to be a distinct channel, conveying more or less water, and constituting Cock Robin Island a real island. Upon this state of facts plaintiff contends that he is entitled to extend his east and west boundary lines northward across the narrow channel of Eastlake Slough, and the eastern extremity of Cock Robin Island, to the present bank of the main channel of Eel River, and to hold the land so included as accretion to his lands. The defendants, on the contrary, claim everything between the two channels, notwithstanding the insignificant size to which Eastlake Slough has been reduced, as accretion belonging to them as owners of Cock Robin Island. This is the entire controversy. We think that the superior court decided it correctly in favor of the defendants. The case falls exactly within the terms of section 1014 of the Civil Code, which is merely declaratory of the law as it has always been. Judgment and order affirmed.