Opinion
7-29-1959
John BISHEL and Helen Bishel, Plaintiffs and Respondents, v. T. R. FARIA, Defendant and Appellant. * Civ. 9638.
F. Louis Gomes and Franklyn E. Wyland, Jr., Fresno, for appellant. Green, Green & Bartow, Madera, for respondents.
John BISHEL and Helen Bishel, Plaintiffs and Respondents,
v.
T. R. FARIA, Defendant and Appellant. *
F. Louis Gomes and Franklyn E. Wyland, Jr., Fresno, for appellant.
Green, Green & Bartow, Madera, for respondents.
WARNE, Justice pro tem.
This is an appeal from the judgment in an action to establish the common boundary line of appellant's and respondents' respective lands and to quiet title. Appellant's land is situate in Fresno County and borders on the San Joaquin River on the south, while respondents' lands lie immediately opposite appellant's lands and extend along the north bank of the river.
The San Joaquin River flows in a general westerly direction between said parcels of land and is a nonnavigable stream at said location. The record shows that the average water flow on the yearly basis varies between approximately three and five thousand sand second feet. In the months of March, April, May and June there is an average flow of from five to twelve thousand second feet.
Located within the bed of the river, and off shore from the north bank, is a sand, gravel and alluvial deposit. During the eight or nine month period of low water, this deposit is connected and attached to the north bank of the river, but during the periods of three or four months of high water it is substantially, if not entirely, submerged. When not entirely submerged an island is formed and water flows between the north bank of the river and the north side of the so-called island.
The trial court found that the main channel of the river was a point midway between the south bank of the river and the south bank of the so-called island or alluvial deposit, and that said center line of the main channel of the San Joaquin River is the true boundary line between the lands of the plaintiffs and the lands of the defendant.
The parties stipulated that the true boundary line between their lands is 'the middle of the * * * stream' as provided by section 830 of the Civil Code, and that said line is the same as the legal boundary line within the area involved dividing Fresno County and Madera County, that is, the middle of the river as provided in section 23120 of the Government Code. However appellant contends that neither the facts nor the law support the trial court's finding that the true boundary of his and respondents' lands lies along the center line of what is the main channel of the stream during the eight or nine months of the year when it does not flow on the north side of the so-called island. Appellant contends that the center line of the river must be found to be midway between the permanent banks which confine the waters in the course of their highest normal level.
We feel that there is merit in appellant's contention, and especially so by reason of the stipulation that the boundary line in question is the same as the boundary line dividing Fresno County and Madera County at that point. Section 23120 of the Government Code describes the boundary of Madera County as 'following up the middle of said river,' and although section 23074 of the Government Code provides that the word 'up' as applied to boundary descriptions of the several counties means the middle of the main channel thereof, that section is ineffective when it is otherwise declared in the descriptions. Sec. 23070, Government Code. We have that very situation here since the description of Madera County as bounded by the San Joaquin River expressly describes that line as running 'up the middle of said river' as distinguished from merely 'up' the river. An examination of the boundary description of the several counties in California where a creek or river forms a portion of the boundary line reveals that in nearly every case, with the exception of Madera County, the Legislature in describing such boundary merely used the words 'up' or 'down' the creek or river, without further qualifications such as 'up the middle of said river.' Boundaries of Counties, Ch. 2, Art. 2, Government Code. Hence we feel that when the Legislature established the boundary line of Madera County it intended that the line should extend along the middle of the river as it normally flows during periods of high water as distinguished from its channel during periods of low water.
In Mammoth Gold Dredging Co. v. Forbes, 39 Cal.App.2d 739, 751-752, 104 P.2d 131, 137, the court set forth principles of law which are pertinent to the issues involved in this case, although that case presented a question as to what the intention of the grantor was when he used the term 'present high water mark on the right bank of the Yuba River.' The court said: 'In the absence of language to the contrary, the bed of a nonnavigable river must be deemed to be bounded by the permanent banks which confine the waters in their course at their highest level. The banks of a river are the boundaries which confine the water to its channel throughout the entire width when the stream is carrying its maximum quantity of water. That definition is peculiarly applicable to those California rivers which depend upon periodical supply of water from winter rains and melted snow, and which diminish in the summer time to mere rivulets which aimlessly wander about over dry gravel beds. Ventura Land & Power Co. v. Meiners, 136 Cal. 284, 290, 68 P. 818, 820, 89 Am.St.Rep. 128. In the last case cited it is said: 'According to the most approved definitions, the banks of rivers or other water courses are 'those boundaries * * * which contain their waters at their highest flow'; or, as otherwise expressed by the same judge, they are 'the fast land which confines the water of a river in its channel or bed, in its whole width.' * * * 'By this term is understood what contains the river in its natural channel, when there is the greatest flow of water.' * * * The principle thus established is peculiarly appropriate to this state where the changes in rainfall from year to year may be said to be periodical. * * * Both definitions agree in holding that the bed of the river is bounded by the permanent or fast banks by which its waters are confined.'
'The ordinary maximum flow of water in a river during the wet season of each year may not be deemed to be mere 'flood' or 'storm waters'. The average level of the water attained by such a river in its annual seasonal flow establishes its high water mark as defined by the authorities. That rule is applied to the San Joaquin River, which is similar in character to the Yuba River, in the case of Herminghaus v. Southern California Edison Co., 200 Cal. 81, where at page 88, 252 P. 607, at page 610, the Supreme Court said:
"The natural flow of water in said San Joaquin River is, and has always been and always will be, if unobstructed, variable in quantity in the course of each and every year; that is to say, the same is, has been, and will be largest and most abundant at times of heavy rainfall over its watershed in said mountains in each winter season, and will also have a larger accretion in the spring and summer season by reason of the melting of the snows in said mountains; that these annually occurring accretions in the amount and flow of the waters of said river are natural and regular, and occur in their usual, expected, and accustomed seasons, and result in an increased amount and flow of the waters of said river. * * * The conclusion is inevitable that the waters of the San Joaquin river annually flowing therein before and during and after these regularly occurring accretions in the volume thereof constitute the usual and ordinary flow of said river * * *"
It follows that 'middle of the river,' as that term was used in describing the boundary of Fresno County, means that point midway between the permanent banks of the San Joaquin River which confine the waters to its channel throughout the entire width when the stream is carrying its maximum, usual and normal quantity of water.
San Pedro, etc. R. R. Co. v. Simons Brick Co., 45 Cal.App. 57, 187 P. 62, cited by respondents, is not applicable to the factual situation in the instant case. That case involves a boundary dispute brought about by a deed describing a piece of property by metes and bounds commencing at a point 'near' the Los Angeles River. It was found by the court that 'near' did not mean coincident with the bank of the stream, since the Los Angeles River during periods of 'normal' flow was at best a trickling stream which sometimes did not carry and water at all and that it was only during storms and flood periods that it had an extended river bed. Impliedly the river had no permanent banks.
Since we have determined what should be the location of the boundary line between Fresno County and Madera County, as those counties border on the San Joaquin River, we deem it unnecessary to discuss other points presented in the briefs.
The judgment is revered.
VAN DYKE, P. J., and SCHOTTKY, J., concur. --------------- * Opinion vacated 1 Cal.Rptr. 153, 347 P.2d 289.