Opinion
Hearing Granted by Supreme Court Aug. 29, 1927.
Appeals from Superior Court, Yolo County; W. A. Anderson, Judge.
Action to quiet title and for damages by J. A.D. Hutton and others against the Yolo Orchard Company and another. From a judgment for plaintiffs, defendants appeal. Reversed. COUNSEL
Elmer W. Armfield and Arthur B. Eddy, both of Woodland, for appellants.
Hurst & Hurst, of Woodland, and E. B. Mering, of San Francisco, for respondents.
OPINION
PLUMMER, J.
Plaintiffs began this action in 1915 to quiet title to certain lands and premises situate in the county of Yolo, state of California, described as follows:
"Commencing at a point on the south property line of Washington street in the town of Cacheville county and state aforesaid, as shown by plat of said town of Cacheville, filed October 10, 1857, in Map Book No. 1, page 37 of the records of the county recorder of the county of Yolo, state of California, and to which map all reference to streets in said town of Cacheville are made, 150 feet easterly from First street in said town of Cacheville, running thence southerly and parallel to said First street to a point 300 feet southerly of the south property line of Clay street in said town of Cacheville to the property of Mary Griffith; thence easterly and along the line of said Mary Griffith’s property to the eastern boundary of the original Hutton property; thence down the bed of Cache creek upon said eastern boundary line of said property to a point where said south property line of said Washington street, if extended, would intersect said eastern boundary line; thence westerly along said extended line to the place of beginning. Said eastern line of said Hutton tract above mentioned is located in the following manner, to wit: Commencing at the southwest corner of lot 2 as described in a deed executed by James M. Harbin and others to James A. Hutton, dated February 4, 1857, and recorded February 5, 1857, in Book C of Deeds, at page 82 records of the office of the county recorder of Yolo county, state of California; thence south and east 18 degrees, 100 rods to the middle of Cache creek; thence down said Cache creek east of north 18 degrees, 64 rods; thence east of north 78½ degrees, 24 rods."
The premises above described are included within the red line on a map, marked "Exhibit 9," and are situated along the bed of that certain stream in said county, known as and called "Cache creek."
In connection with their action to quiet title to said premises the plaintiffs also joined a cause of action for damages against the defendants, alleging that the defendants had removed certain gravel deposits from the easterly side of the center line of said stream to the damage of the plaintiffs in the sum of $25,000. The damages above referred to are set forth in a supplemental complaint filed by said plaintiffs, wherein said sum is alleged to be the value of sand and gravel removed from premises belonging to the plaintiffs by the defendants and converted to their use.
The trial court awarded judgment to the plaintiffs, quieting title to that portion of the premises herein described, lying west of a certain line running along the bed of said Cache creek, known as and called during the trial the "Harter line," being the line shown on Exhibit No. 9 as the west boundary of lands deeded by Harriet S. Hutton et al. to W. W. Brownell et al., by a deed recorded in Book of Deeds 41, page 487, Yolo county records. Judgment was also awarded the plaintiffs in the sum of $4,000. From the judgment quieting title and awarding damages, the defendants appeal.
The record shows that at 10 minutes past 10 o’clock a. m. on February 5, 1857, a deed bearing date of February 4, 1857, was recorded in Book C of Deeds, page 82, wherein and whereby James M. Harbin et al., parties of the first part, conveyed and confirmed unto James A. Hutton, of the county of Yolo, a tract of land containing about 316 acres in the county of Yolo, state of California, upon a part of which premises the town site of Cacheville referred to herein was thereafter located; that on the same day, to wit, at 10 minutes past 1 o’clock p. m., February 5, 1857, there was recorded in Book C of Deeds, page 84, a deed executed by James A. Hutton to James M. Harbin, dated February 4, 1857, wherein and whereby the said James A. Hutton conveyed to James M. Harbin a half interest in 40 acres of land included within the tract mentioned in the deed of Harbin to Hutton, and, at the same time, there was recorded in Book A of Mortgages, page 285, Yolo county records, a mortgage by the said Harbin to the said Hutton, covering the 40 acres of land included in the conveyance of Hutton to Harbin, whereby the said Harbin mortgaged to the said Hutton the said 40 acres of land to secure the payment of the sum of $857.
In the deed from Hutton to Harbin mention is made of a certain map or plan of a town to be thereafter mutually made by the said Harbin and the said Hutton, from which plat was to be reserved certain lots upon which certain buildings might be found to be situate upon said premises after the same were platted. In the deed from Hutton to Harbin and in the mortgage from Harbin to Hutton, the east boundary line of the 40 acres conveyed and mortgaged was described as follows:
"Thence south of east eighteen degrees (18° ) one hundred rods to the middle of the bed of said Cache creek; thence down said creek east of north (18° ) eighteen degrees, sixty rods," etc.
The premises conveyed by Hutton to Harbin and by Harbin mortgaged to Hutton are shown upon the annexed map marked Exhibit A, and used by us for the purposes of illustration only:
The premises included in the last-mentioned deed and mortgage lie to the south of that certain street designated on the map as Washington street and west of the center of Cache creek. Thereafter, and on the 10th day of October, 1857, James A. Harbin filed in the county recorder’s office of the county of Yolo, a map of the proposed town of Cacheville. The premises included in this action are shown upon "Exhibit 9" here annexed [see page 902] and the plat of the town of Cacheville, so far as involved herein and being a tracing of the original map, is shown upon "Exhibit 10," also annexed [see page 903].
On the 10th day of October, 1857, James A. Hutton and James M. Harbin granted and conveyed to one T. F. W. Price:
"All of that tract of land situate in the county of Yolo, state of California, known and described on the official plot of said town of Cacheville as fractional block No. three (3) being three hundred (300) feet front on First street and running back on Sacramento and Clay streets to the bank of Cache creek, containing five (5) lots of sixty (60) feet front each."
On May 1, 1857, said Hutton and Harbin granted and conveyed to one Philo L. Dustin those certain premises designated on the official map or plat of said town of Cacheville as "the south half of lot No. four (4) in fractional block No. two (2)" lying 30-foot frontage on First street and running back 150 feet. On July 18, 1862, James A. Hutton conveyed and granted to C. D. Moran those certain premises described as:
"Lot No. one (1) in block No. two (2) being sixty feet front on First street and running back one hundred and fifty feet on Sacramento street, as laid down on the official map of said town of Cacheville, on file in the recorder’s office of Yolo county."
On September 4, 1858, said Hutton conveyed and granted to one Selig and Hyman those certain premises in the town of Cacheville described as:
"Lot No. two (2) in block No. two (2) as laid down and delineated on the plat of the town of Cacheville, which lot contains sixty feet front on First street and back eastwardly to the bank of Cache creek, and is bounded on the north by lot No. three (3) of the same block, east by Cache creek, south by lot No. one (1) of the same block, which separates it from Sacramento street, and West by said First street."
On August 12, 1867, said Hutton conveyed to Charles S. White et al. those certain premises in the town of Cacheville, described as:
"Lot No. two in said town of Cacheville, also a strip of land 39 feet 8 inches wide across the whole length of the north side of lot No. one (1) in block No. two (2) of said town."
On October 18, 1858, said Hutton conveyed to one Ferguson those certain premises described as:
"Lot 3, block 2, of the town of Cacheville, as laid down on the official map of said town, containing 60 feet front on First street and running back about 150 feet to the bank of Cache creek, bounded north by P. L. Dustin, east by the bank of Cache creek, south by Hyman, and west by First street."
On September 30, 1858, James A. Hutton conveyed and granted to P. L. Dustin those certain premises situate in the town of Cacheville, as appears on the map thereof, and described as follows:
"The south half of lot No. four (4) in fractional block No. two (2), containing a front of thirty feet on First street and running back eastwardly to the water line of Cache creek; bounded west by First street, north by the north half of said lot formerly sold to said Dustin, east by Cache creek, and south by lot No. three."
On May 13, 1857, said Hutton sold to Laurence Hollenbeck and John T. Noel those certain premises in the town of Cacheville, described as follows:
"Being in the town of Cacheville and known and designated on the official plat of said town of Cacheville as lot No. five in fractional block No. two, lying sixty feet front on First street and running back one hundred and fifty feet on Washington street."
On June 7, 1887, Harriet S. Hutton and others granted and conveyed to W. W. Brownell all and singular those certain premises situate in the county of Yolo, containing about 212 acres, being a portion of the premises theretofore conveyed by James M. Harbin to the said James A. Hutton, by the deed first mentioned herein. This deed, among
other lands, conveyed the premises described on one of the maps as property belonging to the defendant Yolo Orchard Company. The boundary lines in this deed, so far as material here, are as follows:
"Thence east 30 feet to the fence on the east side of the road; thence southerly on the line of said fence to the center of Cache creek; thence down the center of said creek to Cramer’s southwest corner."
On February 9, 1860, James A. Hutton conveyed to William Campbell those certain premises in Yolo county, described as follows:
"Commencing at the southeast corner of the junction of Clay and First streets in the town
of Cacheville; thence running southerly with the direction of said First street 300 feet; thence easterly to the western bank of Cache creek; thence northerly with the western bank of said Cache creek 300 feet to the south boundary line of Clay street; thence westerly with the southern boundary of said street to the place of beginning."
Thereafter said premises were conveyed by S. N. Mering to Mrs. Nancy Mering, his wife, by a deed dated May 14, 1892, describing the premises as follows:
"Commencing at a point common to the middle of Clay and First street in the village of Cacheville; thence running southerly in the direction of said First street one hundred and sixty feet (160) to the lands of A. Griffith; thence easterly to the middle of Cache creek; thence northerly down the middle of said Cache creek one hundred and sixty (160) feet to the middle of Clay street; thence westerly down the middle of said Clay street to the place of beginning.
"Also that certain piece of land adjoining the above-described land commencing at a point common to the center of Clay and First streets; thence running westerly down the middle of Clay street, three hundred and sixty (360) feet to a point common tothe middle of Clay and Second streets; thence southerly down the middle of the county road one hundred and ninety (190) feet; thence easterly and parallel with Clay street three hundred and sixty (360) feet; thence northerly and parallel with said Second street one hundred and ninety (190) feet to the place of beginning, commonly known as the New Process Flouring Mills."
Thereafter, on October 26, 1926, said Nancy Mering conveyed to C. S. Mering all of the premises just herein described. On February 13, 1901, C. S. Mering conveyed to E. B. Mering et al. all of the premises last described. On June 24, 1901, C. S. Mering, E. B. Mering et al., sold and conveyed to E. J. De Pue all of the premises last herein described, and on July 29, 1901, said De Pue conveyed to the Yolo Orchard Company all of the premises herein described.
It will be observed that all of these deeds beginning with May 14, 1892, described the easterly boundary of the premises conveyed as being the middle of Cache creek. The controversy herein revolves around the question of whether the several deeds herein referred to have conveyed whatever interest James A. Hutton originally acquired to the bed of Cache creek, or whether the conveyances limited the boundary line of the several tracts so as to leave in the said Hutton, and therefore in the present plaintiffs as his heirs, a small portion of the bed of the Cache creek lying west of the center line thereof and adjoining fractional blocks Nos. 2 and 3 in Cacheville and a small portion of the bed of said creek lying east of property belonging to the defendant known as the "mill site." The record does not disclose that James M. Harbin ever parted with his half interest in the 40 acres conveyed to him by Hutton, other than as the fractional block No. 3, in the town of Cacheville and certain lots in fractional block No. 2.
On the part of the respondents it is contended that no title to said premises is shown by the record to have been vested in James M. Harbin by virtue of the deed to him of a half interest in the 40 acres herein referred to, by reason of the fact that the conveyance from Hutton to Harbin appears to have been acknowledged by Harbin and not by Hutton. As meeting this contention, appellant calls attention to section 1207 of the Civil Code relating to conveyances defectively acknowledged prior to a certain date. Respondent questions the applicability of this section, insisting that it relates only to the protection of subsequent purchasers or incumbrancers, and does not permit the admission of the deed from Hutton to Harbin as evidence for any purpose in this case. The last sentence of said section, however, is general in its terms, and makes a recorded instrument, though defectively acknowledged, as effective as though it were properly acknowledged. The last part of the sentence reads as follows:
"Duly certified copies of the record of any such instrument may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within fifteen years prior to the trial of the action, it is shown first that the original instrument was genuine."
The deed in this case defectively acknowledged was recorded some 60 years prior to the date when it was sought to introduce it in evidence. The admissibility of such a deed is considered in the case of Mercantile Trust Co. v. All Persons, 183 Cal. 369, 191 P. 691, and does not appear to be limited to controversies simply between purchasers and incumbrancers. However, as to whether Harbin ever acquired a one-half interest, or now has any interest in the Cacheville premises involved in this action, is wholly immaterial. The relevancy of the conveyance of Hutton to Harbin is only as a circumstance, along with others, tending to evidence the intent of Hutton to part with or withhold his interest in the bed of Cache creek. After the various deeds executed by both Hutton and Harbin, and by Hutton alone, conveying all the lots in fractional blocks Nos. 2 and 3, having an east frontage on Cache creek, or wherever the line may be, we find that the Hutton heirs joined in a deed conveying all the property belonging to him lying easterly of Cache creek and east of the said town of Cacheville and the lots herein described, which deed places the west boundary line of the lands conveyed as running to the center of Cache creek, and thence down the center of said Cache creek to a certain designated corner.
In the conveyance executed by Hutton and Harbin to Price, conveying fractional block No. 3, in the town of Cacheville, the premises are described as follows:
"Being three hundred (300) feet front on First street and running back on Sacramento and Clay streets to the bank of Cache creek."
In the deed from Hutton to Harbin and in the mortgage from Hardin to Hutton, the east boundary line of the same premises is described as the center of Cache creek. The reasonable inference from the language used in these instruments would be that the boundary line is intended to be the same in all three cases; there being nothing to indicate a contrary intention. The deed from Hutton and Harbin to Price not containing any reference to a line running northerly and southerly along the west bank or along the bank of Cache creek, deliminating or evidencing an intention to mark out a boundary line different from that referred to in the instruments executed by Hutton to Harbin and Harbin to Hutton, the east line would be the center of the creek. In the deed from Hutton and Harbin to Dustin conveying the north half of lot No. 4, in block No. 2, the premises are described as running back 150 feet, but the reference is first made to the lot as described on the plat. The tracing from the plat on file shows a different length, from which it follows that the 150 feet line does not limit the extent of the lot, but it extends back from Front street the distance necessary to make it conform to the plat according to which it is conveyed.
Lot No. 1 in block No. 2 is described as running back 150 feet on Sacramento street. This lot is also sold as laid down on the official map of the town of Cacheville. A reference to the tracing from the original plat shows that the northerly line of the lot is longer than the southerly line. No distance is given for the northerly line in the conveyance, nor is there any connecting boundary line mentioned as defining the easterly boundary line connecting the north and south boundary lines of said lot. From this it follows that, wherever the map filed carries the lines, the conveyance must be held as conforming thereto. In the deed executed by Hutton to Selig and Hyman, lot No. 2, in block No. 2, is conveyed as laid down and designated on the plat of the town of Cacheville, which lot contains 60 feet frontage on First street and running back eastwardly to the bank of Cache creek, and then the boundary is stated as follows:
"On the north by lot No. three (3) of the same block, east by Cache creek, south by lot No. one (1) of same block, *** and west by First street."
There seems to us no reasonable question but that "the bank of Cache creek and bounded east by Cache creek" are used as synonymous terms and under section 830 of the Civil Code carries the east boundary to the center of the creek. Again, in the conveyance of lot No. 3, in block No. 2, "as laid down on the official map of said town," the lot is described as "containing 60 feet frontage on First street and running back about 150 feet to the bank of Cache creek; bounded north by P. L. Dustin, east by the bank of Cache creek, south by Hyman, and west by said First street."
Cache creek, being a permanent natural monument, carries the line back to the creek, and, under section 830 of the Civil Code, to the center of the creek. It also appears that the language "150 feet" to the bank of Cache creek has preceding it the word "about," which shows that the parties did not intend to limit said line to 150 feet, but to carry the line back to Cache creek, irrespective of whether it was or was not 150 feet. The distance in this case mentioned is only relative, or given in such terms as to indicate no intention to cut off the lot before it reached the creek.
The conveyance of lot No. 4, in block No. 2, was effected by two deeds, one conveying the north half and the latter the south half. In the deed conveying the north half of lot No. 4, after describing the lot as described on the official map, the description contains the following:
"The north half of lot No. four in fractional block. No. two, lying thirty feet front on First street and running back one hundred and fifty feet."
The conveyance of the south half of the same lot, after referring to the lot as designated and numbered according to the official map of the town of Cacheville, etc., uses the following description:
"The south half of lot No. four (4) in fractional block No. two (2), containing a front of thirty feet on First street and running back eastwardly to the water line of Cache creek; bounded west by First street, north by the north half of said lot formerly sold to said Dustin, east by Cache creek, and south by lot No. three."
This deed clearly shows the intention of the grantor to carry the line of the lot eastwardly to Cache creek. A reference to the maps which we have set forth herein shows that the north line of lot No. 4, in block No. 2, is longer than the south line and that the easterly line of the north half of lot No. 4 would be longer than the easterly boundary line of the south half of lot No. 4, even though Cache creek is the easterly boundary line of both the north and south half of said lots. Also, in this latter deed, we have the water line of Cache creek and east by Cache creek used in the same sense of fixing the east boundary line, which under section 830 of the Civil Code means the center line of Cache creek.
In the instrument conveying lot No. 5, in block No. 2, the description is as follows:
"Being in the town of Cacheville and known and designated on the official plat of said town of Cacheville as lot No. five in fractional block No. two, lying sixty feet front on First street and running back one hundred and fifty feet on Washington street."
The description in feet cuts the line short a considerable distance from Cache creek as the lot is delineated on the official plat of the town of Cacheville, and this is true whether the bank of the creek or the center line of the creek be held as the easterly boundary line of the lot. Here, again, we may refer to the boundary lines given in the deeds conveying lot No. 4, in said block, which goes back to the water line of Cache creek, and upon the official map the north line of lot No. 4, in block No. 2, and the south half of lot No. 5, in block No. 2, are one and the same. Thus, if lot No. 4 goes to the water line of Cache creek or to Cache creek, lot No. 5 extends to the same boundary.
Section 830 of the Civil Code reads as follows:
"Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tidewater, takes to ordinary high-water mark; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream."
This section must also be read in connection with certain subdivisions of section 2077 of the Code of Civil Procedure, in considering the deeds, to which we have referred. In subdivision 2 of said latter section we find the following:
"When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount."
And also subdivision 4:
"When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title."
And subdivision 6:
"When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appear that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars."
As we have said, there appears to be nothing in any of the deeds conveying the fractional parts of blocks 2 and 3, which would indicate an intention on the part of the grantor to limit the easterly boundary of the lots to a line 150 feet east of First street or to the west bank of Cache creek. None of the deeds contain such words of limitation as running along the bank of Cache creek or running along the westerly bank of Cache creek, as appears in some of the cases holding that such language limits a deed to the bank instead of the conveyance carrying title to the center of the stream, as would otherwise be the case under section 830 of the Civil Code.
Under subdivision 2 of section 2077 of the Code of Civil Procedure the distance in this case stated as 150 feet and also as about 150 feet must give way to the definite and ascertained boundary of Cache creek, the water line of the center of the stream. In all cases the official map was referred to as the lot conveyed and the further description of the lots contained in the deeds do not appear in any way to affect such description, nor are they inconsistent therewith, unless it be held that in the instances where certain lines are mentioned as running 150 feet or about 150 feet easterly are inconsistent with the map, but, in view of the fact that in some of those very deeds, the bank of Cache creek, the water line of Cache creek and Cache creek are designated as the easterly line, it is evident that the grantor intended to convey according to the map which carried the lots to Cache creek, and that the permanent monuments referred to were intended to designate the easterly boundary line of the property conveyed.
The claim of title by prescription on the part of the plaintiffs requires but little mention. The record shows that the premises exhibited no visible evidence of possession by any of the plaintiffs, save and except the hauling therefrom of a few loads of sand at same date after 1892, from a place in the creek near what was called the old Mering property, near the mill site. The record shows no inclosure of the premises described in the plaintiffs’ complaint, and it is further shown that said premises were never listed for the purposes of taxation, and that no taxes had been paid by the plaintiffs upon the claimed premises. The only occupancy of the disputed premises is that of the alleged use made thereof by the defendants in taking sand and gravel, as the scrapers or machinery operated by the Yolo Orchard Company moved in its course across Cache creek to take sand and gravel from the bed thereof.
In addition to the résumé which we have given of the deeds of conveyance and the sections of the Code, citation of authority seems unnecessary. However, the language of the Supreme Court in the case of Los Angeles v. San Pedro, etc., R. Co., 182 Cal. 652, 189 P. 449, is applicable:
"‘It may be considered a cañon in American jurisprudence that, where the calls in a conveyance of land are for two corners at, in, or on a stream or its bank, and there is an immediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise.’ See, also, City of St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941; see, also, Rose’s U.S. Notes; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838, 35 L.Ed. 428; Producers’ Oil Co. v. Hanzen, 238 U.S. 325, 35 S.Ct. 755, 59 L.Ed. 1330."
Attention is also called in that case to the rule of interpretation that, where the sovereign is the grantor, the instrument is considered most strongly in favor of the sovereign, but, where a private party is the grantor, the grantee is the favored one, in the event of any controversy.
The language of the decision just referred to shows that deeds carrying side lines to the bank of a stream without any limitation by a description of a short line connecting the two side lines as running along the shore or bank of a stream carry the conveyance to the center of the stream-in this case, to the center of Cache creek.
In considering words of limitation, which may appear in the conveyances of lands bordering on streams, the text-writer, in 4 Ruling Case Law, page 87, refers to the authorities as follows:
"Other words such as running ‘down river,’ ‘along the shore,’ or ‘along the bank,’ may be given the same effect and may prescribe a limitation of the boundary line to the shore or bank. For the same reason a boundary which runs ‘up the bank’ will pass title merely to low-water line. However, in some jurisdictions the courts adhere to a different rule, and when a deed describes the land as bounded by a bank, or as on the west side of a nonnavigable river, or by lines running to a stake or line upon the bank, thence ‘up’ or ‘down’ the stream to another monument on the bank, the thread of the stream is the boundary. And the words ‘running up a creek’ are not treated as a binding call, but merely as indicating the general direction of the line, which must run in a straight direction from boundary to boundary. Accordingly, there are decisions that the title to the center of a stream is granted by a deed describing the boundary line running ‘to the river, and thence on the river shore’; or by a description of land as ‘lying on the south side’ of a nonnavigable river which is also named as a boundary."
As heretofore said, however, none of the deeds to which we have referred contain any words of limitation. We are therefore constrained to hold that the plaintiffs have shown no title by mesne conveyances or by possession, by virtue of which they would be enabled to maintain this action. Not having title to the premises involved in this action, they have suffered no damages.
While not necessary to a decision herein, we will refer to the subject of damages. The court found that the defendant Yolo Orchard Company had removed from Cache creek during the several years of its operations 98,971 tons of sand and gravel, for which it received the gross returns of $56,618.95, and that the plaintiffs had been damaged in the sum of $4,000. So far as the findings are concerned, just how and in what manner the $4,000 damages suffered by the plaintiffs were estimated does not appear. There is no finding that it was impossible to ascertain the amount or approximately the amount of sand taken from the premises alleged to belong to the plaintiffs, nor does it appear whether the damages were or were not allowed from the value of the sand in place at the time of its alleged removal. The record shows that there is testimony from which, if believed by the trial court, the quantity of sand and gravel removed from the premises claimed by the plaintiffs could be estimated. There is no difference shown by the record of the value of sand and gravel taken from either side of the center of Cache creek. The record does show, however, that as sand and gravel were removed from the stream, the recurring floods in Cache creek proceeded to make additional deposits of sand and gravel, and in most cases to cover up and heal whatever wounds or excavations defendants made in the bed of the stream.
Under the rule relating to the confusion of goods caused by the wrongful act of another, it is only when the admixture is such that the true proportions are indistinguishable that the injured party may replevy the whole or sue in damages for the value of the whole. The rule in relation to damages in such cases is set forth in section 47, of the Second Edition of 2 Schouler on Personal Property, as follows:
"If the intermixture was caused by one’s willful misconduct, the offender must bear the loss; for it has long been settled at common law that, where personal chattels, solid or fluid, are so mingled as to have become undistinguishable by the wrongful act of one owner, he cannot recover for his own proportion, nor for any part of the intermixture, but the entire property vests in him whose right was invaded. Nor is the latter obligated to compensate the former, in such a case, according to our laws, in which respect many have thought that we differ from the civilians; for the gist of the rule appears to be the natural justice, on the one hand, of allowing the intentional trespasser to be the loser by his own wrongful act, and, on the other, the injustice of permitting any innocent owner to be deprived of property without his consent. The intermixture being such, then, that the true proportions are undistinguishable, the injured party may replay the whole, or sue in damages for its value."
While the burden of proof rests upon the party causing the intermixture, if the testimony shows that the court can approximate the rights of the parties, neither one is entitled to all the proceeds of the value of the whole. In 5 California Jurisprudence, p. 489, § 5, the rule is set forth as we have just stated and the authorities are cited. The text is as follows:
"The rule stated in the preceding section is carried no further than necessity requires. If the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. Also, if the goods mixed together were of equal value, as corn or flour, then the injured party takes his given quantity and not the whole. If exact justice cannot be obtained, an approximation to it must be sought, care being taken that no injury is done to the innocent party. The burden of proof rests with the party causing the mixture."
Likewise, in 5 Ruling Case Law, p. 1057, relative to confusion of goods and the rights of the parties, the rule is stated that whether there has been such a mixture of goods as will prevent a recovery of his proportion thereof by one of the owners is a question of fact for the jury, and it was error for the court to assume to decide that question; that is, in this case, it was a question of fact for the court to decide. In this case, the findings show that the court failed to decide the vital question, which determines whether the rights of the parties, whether the proportions could be determined, whether the innocent party should be given the whole, or the wrongdoer allowed an equitable proportion. Whether the $4,000 allowed as damages is for the whole value of the sand and gravel in place or for a proportionate share thereof, or what part thereof, does not appear. The evidence does show that the value of the sand and gravel in place was only nominal.
In addition to the authorities which we have cited, we may also list the note to the case of Ayre v. Hixson, Ann. Cas. 1913E, p. 665, where the subject is fully considered.
Other reasons are assigned herein as grounds for reversal, but by reason of the foregoing, and especially the first ground herein considered, further extension of this opinion is unnecessary.
The judgment is reversed.
We concur: FINCH, P. J.; HART, J.