WHITE v. STATE

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Court of Appeal, First District, Division 1, California.

Osborne WHITE and Aileen Dowsett White, Plaintiffs and Respondents, v. STATE of California, Defendant and Appellant.

Civ. 28156.

Decided: July 15, 1971

Thomas C. Lynch, Atty. Gen., of the State of Cal., Charles A. O'Brien, Chief Deputy Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., Bertram G. Buzzini, N. Gregory Taylor, Deputy Attys. Gen., Sacramento, for appellant. Bruce A. Beckman, Los Angeles, for amicus curiae, Sierra Club. Edward D. Landels, Landels, Ripley & Diamond, San Francisco, for respondents.

Plaintiffs brought this action against the State of California (hereinafter ‘the State’) to quiet title and establish boundaries to certain Sonoma County real property. Plaintiffs recovered judgment as prayed for and the State appeals.

Statement of the Case

In 1960 the State caused a map to be recorded of an area along the banks of the Petaluma Creek which set forth the areas to which the State claims title. This map included approximately 38 acres of tidelands1 on the east side of the river claimed by plaintiffs along the southwest portion of their property, consisting of approximately 445 acres. Plaintiffs deraign title to their real property through mesne conveyances from E. B. Perrin and Phillip E. Tuggle who, in 1880, obtained a patent from the State.2 Plaintiffs claim that the metes and bounds description in the patent include the tidelands in question. The subject patent was issued upon the basis of a survey made in 1872 known as ‘Swamp and Overflowed Lands Survey No. 58’ (Hereinafter referred to as ‘Survey No. 58’). The only monument in this survey was referred to as ‘a stake in a bed of broken glass.’ The ‘stake’ and the ‘bed of broken glass' have was able to locate either of them.

Both plaintiffs and the State introduced evidence attempting to reestablish the lines of Survey No. 58. It is the State's contention that the survey description intended to meander the ordinary high water mark of the Petaluma Creek and that a finding of such intent is compelled by the presumptions set forth in Civil Code sections 830 and 1069.3 Plaintiffs contend that the intent was to meander the low water mark and that such intent was established by evidence sufficient to overcome the presumptions. It is conceded that the Petaluma Creek, at the point where it passes the subject property, is a tidal and navigable river.

The Facts

In 1868 the Legislature enacted ‘An Act to provide for the management and sale of the lands belonging to the State,’ part II of which related to the sale and reclamation of ‘swamp and overflowed, salt marsh tidelands.’ (Stats. 1867–68, ch. 415, p. 507—hereinafter ‘the Act.’) Pursuant to the Act one John Reagan made application in 1870 to purchase and reclaim ‘a certain tract of swamp and overflowed land being salt marsh land in Sonoma County lying and situate on the north side of Petaluma Creek being the second island below the mouth of the San Antonio Creek.’ Pursuant to said application Reagan received a certificate of purchase from the State.

In accordance with the Act J. B. Wood, the county surveyor, surveyed the property and on March 13, 1872 filed Survey No. 58. This survey contains a metes and bounds description of the land but contains no reference to Petaluma Creek. Although it states that it embraces 934.65 acres, the parties agree that the acreage encompassed by the metes and bounds description encompassed from 880 to 888 acres. The surveyor, in speaking of the island area, said it was ‘So swampy a perfect survey cannot be made.’ The many calls of the survey began ‘at a stake in a bed of broken glass' hereinabove alluded to. Survey No. 58 also included the surveyor's field notes and a plat of the land therein described. The plat, however, contained no distances. of bearings.

Reagan's interest in the land covered by Survey No. 58 was purchased by Perrin and Tuggle at a sheriff's sale. In 1879 Perrin and Tuggle formed a reclamation district for the purpose of reclaiming the land embraced by Survey No. 58 and other adjoining parcels owned by them. Upon certification that the work of reclamation had been completed the land covered by Survey No. 58 was patented by the State in 1880 to Perrin and Tuggle. The land was described in the patent in the same manner as expressed in Survey No. 58.

Plaintiffs purchased their property in 1948. At that time there was a levee along the easterly bank of the Petaluma Creek (hereinafter referred to as the ‘new levee’). This levee was in need of repair. These repairs were accomplished by plaintiffs in 1952 and 1953. Several hundred feet easterly of the new levee there were visible vestiges of another levee (hereinafter sometimes referred to as the ‘old levee’). The construction of the ‘new levee’ had the effect of reclaiming the land between that levee and the ‘old levee.’ This is the 38-acre area in dispute. This area lies, essentially, between what would be the high and low tide lines, since the new levee essentially follows the low water line and the old levee essentially follows the high water line.

The record does disclose when the new levee was built. The earliest map upon which such levee is shown is the 1960 map prepared by the State. However, it does appear in an aerial photograph taken in 1952. The old levee is shown on an 1887 map.

An 1860 hydrographic survey map indicates that the land embraced by Survey No. 58 consisted in the greater part of what was formerly in island in the Petaluma Creek. This island was then what might roughly be described as a narrow triangle pointing generally southeasterly and downstream, with sides about two miles in length and an upstream base about seven-eighths of a mile across. The 1860 survey made no attempt to delineate the courses and distances of the island's outline; rather, it consisted of a relief portrayal of the island, the river, and the nearby land.

In preparing its 1960 maps the State utilize the 1860 topographic survey for the purpose of identifying the shoreline configuration of the island and the line of ordinary high water mark it existed in 1860. By matching the metes and bounds description contained in Survey No. 58 with the 1860 topography the State was able to demonstrate that the old levee shown on the 1887 map was approximately on the high water line as shown on the 1860 map.

To establish the location of Survey No. 58 the State made no ground survey but established its location, and particularly its southwest boundary, by evidence consisting of the superimposition of a perimeter outline of Survey No. 58 on the hydrographic map of 1860. A plat outlining the courses and distances of Survey No. 58 when superimposed on the 1860 map disclosed that the plat's angular courses and distances reasonably overlapped the northwesterly and southwesterly sides of the island as shown on the 1860 map. This evidence was adduced to show that the meander line could be made to fit the line of the ordinary high tide shown on the 1860 map. In plotting Survey No. 58 from the legal description for purposes of such superimposition the State took the position that the description in Survey No. 58 was in error in that two courses therein should be transposed on the assumption the the surveyor made an error.

Plaintiffs adduced evidence that, in the immediate area of the land embraced by Survey No. 58, all land lying between Petaluma Creek and the Petaluma Rancho line to the east was first conveyed by the State through patents similar to that conveying the land described in Survey No. 58 and pursuant to the same legislation. Survey No. 58 occupies the area between patents pursuant to Survey No. 21 and Survey No. 15. The land covered by Survey No. 21, which lies immediately to the north of Survey No. 58, was surveyed by Wood, the county surveyor, on the day preceding the survey of the land embraced in Survey No. 58, and the land covered by Survey no. 15, which lies on the east and south of land covered by Survey No. 58, had been previously surveyed. Both Survey No. 21 and Survey No. 15 extend from the Rancho line to Petaluma Creek.

Herbert G. Passarino, a licensed surveyor, testifying on behalf of plaintiffs, stated that because of the lack of monumentation, he concluded, upon a study of all the surveys, that the only manner in which such surveys could be retraced was to establish the Petaluma Rancho boundary. He testified that he was able to locate the Rancho line and described how he did so. Passarino testified he was able to locate Survey No. 21 and Survey No. 15 by ties to the Rancho line, and that by such locations he determined the location of Survey No. 58. This location, he stated, placed the southwesterly line boundary of Survey No. 58 at the low water mark of Petaluma Creek. Passarino also testified that, in his opinion, the original surveyor was attempting to meander the edge of Petaluma Creek at such low water mark.

Passarino testified that by accepting the high water mark mark in the 1860 map as the southwesterly boundary the area of Survey No. 58 would be reduced to 850 acres, some 38 acres less than the 888 acres computed by Passarino to be contained in Survey No. 58.4 He also testified that in the 1860 map the area in dispute was shown as having a zero elevation. Passarino sarino also testified that under the State's positioning of the land embraced in Survey No. 58 by the use of a plat outlining the courses and distances therein delineated such land is located approximately 600 feet northerly of where it actually is. Passarino also stated that in running his courses and distances of Survey No. 58 he did so without reference to the acreage described in the patent.

James W. Robinson, a licensed surveyor called by plaintiffs, testified that, by consulting old deeds of record, he located a starting point on the Rancho line, and from there was able to plot the swamp and overflowed land surveys. By plotting these surveys, he determined the southwesterly line of Survey No. 58 to be the low water line of Survey No. 58 to be the low water line of Petaluma Creek. Robinson also testified that, in his opinion, based upon the plat filed by the original surveyor, the original surveyor was attempting to meander the low water line and that if he was attempting to meander the high would have been placed considerably east of the position at which he placed it. Robinson testified further that none of the boundaries of the surveys plotted by him followed the high tidewater line and that included in the land conveyed by the patents based on these surveys there was a substantial amount of tideland, i. e., tidelands having a zero elevation.

Both Passarino and Robinson testified that under the map of 1860, as well as by their determinations, the width of the main channel of the creek is 600 feet, i. e., to the low water mark, and that if the boundary was to be taken at the high water mark shown in the map of 1860, the width of the creek would be approximately 1200 feet.

It is agreed by the parties that the course and distances of Survey No. 58, insofar as they concern the Petaluma Creek boundary, represent a meander line along the east side of the creek. The disagreement lies in whether the meander line was intended to represent the high water mark, as the State contends, or the low water mark, as contended by plaintiffs.

Findings of Fact

The trial court found that the courses and distances of the southwesterly lands described in the patent pursuant to Survey No. 58 were in the nature of a meander line and were intended to and did meander the ordinary low water line of Petaluma Creek on the northeasterly side thereof. The trial court also found that the general location of the main channel of Petaluma Creek where it adjoins the subject property has not materially changed since the preparation of Survey No. 58, except that the ordinary low water line on the northeasterly side of said channel now lies easterly of the ordinary water line as it existed in the hydrographic map of 1860.5 The trial court found, further, that the area lying between the old levee and the channel of Petaluma Creek constituted tideland marsh at the time Survey No. 58 was made, and that it was the intention of the State in issuing the patent according to said survey that the lands described therein, including the portion constituting tideland marsh, be reclaimed for agricultural use. The court also found that plaintiffs and their predecessors in interest have reclaimed the land in dispute and have for a great many years occupied the same, claiming to own the same in fee, and have cultivated the land for agricultural uses.6

Analysis

We have concluded that we are here concerned with the substantial evidence rule. In the application of that rule the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805; Brewer v. Simpson, 53 Cal.2d 567, 583, 2 Cal.Rptr. 609, 349 P.2d 289.) We have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757; Phillips v. Standard Acc. Ins. Co., 180 Cal.App.2d 474, 480, 4 Cal.Rptr. 277; In re Gano, 160 Cal.App.2d 700, 705, 325 P.2d 485.)

In the present case the trial court, in its ‘Notice of Intended Decision,'7 accepted as credible the testimony of the surveyors, Passarino and Robinson. Their testimony consisted of more than a scintella of evidence; nor was such testimony inherently improbable; rather it consisted of relevant evidence which was such as a reasonable man might accept as adequate to support a conclusion, and it was of ponderable legal significance. (Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54; United Professional Planning, Inc. v. Superior Court, 9 Cal.App.3d 377, 392–393, 88 Cal.Rptr. 551; Franco Western Oil Co. v. Fariss, 259 Cal.App.2d 325, 329, 66 Cal.Rptr. 458.) We observe, moreover, that in said intended decision the trial court expressed skepticism with respect to the value and weight to be attached to the State's evidence tendered by the positioning of the plat of the courses and distances delineated in Survey No. 58 on the hydrographic map of 1860.

Adverting to section 1069 of the Civil Code8 providing, in pertinent part, that ‘every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor,’ we observe that this section does not set forth a presumption as claimed by the State. It is a rule of construction. (See Los Angeles v. San Pedro etc. R. R. Co., 182 Cal. 652, 655, 189 P. 449.) This rule of interpretation provided for in section 1069 applies only in cases of ambiguity. (Laux v. Freed, 53 Cal.2d 512, 522–523, 2 Cal.Rptr. 265, 348 P.2d 873; City of Los Angeles v. Howard, 244 Cal.App.2d 538, 545, 53 Cal.Rptr. 274.) Such rule, however, ‘must be considered in connection with other provisions of the Code in reference to interpretations, the most prominent of which is that all interpretations should be directed toward the ascertainment of the true intent of the parties.’ (Pitcairn v. Harkness, 10 Cal.App. 295, 298, 101 P. 809; Main v. Legnitto, 230 Cal.App.2d 667, 678, 41 Cal.Rptr. 223, 230.) By the same token we perceive that section 1069 must be construed in connection with other principles of interpretation established by decisional law where such principles are applicable. (See Keane v. Smith, 4 Cal.3d 932, 939, 95 Cal.Rptr. 197, 485 P.2d 261.)

In the instant case section 1069 is applicable because there is an ambiguity in the subject patent. However, since we are not confined solely to the terms of the patent without the aid of evidence, and since there is a conflict in the evidence adduced from which conflicting inferences may be drawn, the rule of construction stated in section 1069 is not per se controlling but must be considered in the light of the principles applicable where the interpretation turns upon the credibility of extrinsic evidence. (See Parsons v. Bristol Development Co., 62 Cal.2d 861, 865–866, fn. 2, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825.) Here the question of the State's intention in issuing the subject patent turns upon the credibility of extrinsic evidence which was conflicting and from which conflicting inferences could be drawn. Accordingly, such evidence may be such as to negate the rule of construction provided for in section 1069. The question of the State's intention, therefore, was a question of fact to be determined by the trial judge and we are bound by his interpretation. (Parsons v. Bristol Development Co., supra; Keane v. Smith, supra, 4 Cal.3d 932, 939, 95 Cal.Rptr. 197, 485 P.2d 261; Walsh v. Walsh, 18 Cal.2d 439, 444, 116 P.2d 62; Distefano v. Hall, 218 Cal.App.2d 657, 671, 32 Cal.Rptr. 770.)

Turning to section 830, we observe that it provides that ‘Except where a grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide-water, takes to the ordinary high-water mark; * * *’ (Emphasis added.) This statute creates a presumption in favor of public ownership of land between high and low tide. (Gion v. City of Santa Cruz, 2 Cal.3d 29, 42, 84 Cal.Rptr. 162, 465 P.2d 50; Carlson v. Richardson, 267 Cal.App.2d 204, 207, 72 Cal.Rptr. 769; see Abbot Kinney Co. v. City of Los Angeles, 53 Cal.2d 52, 57, 346 P.2d 385.) This presumption is not conclusive, however, since the statute specifically provides that this presumption applies except where the grant under which the land is held indicates a different intent. (Hess v. Merrell, 78 Cal.App.2d 896, 900, 178 P.2d 467; Wright v. Seymour, 69 Cal. 122, 127, 10 P. 323.) Accordingly, this presumption applies ‘in the absence of evidence to the contrary.’ (Long Beach Land and Water Co. v. Richardson, 70 Cal. 206, 209, 11 P. 695, 696; Abbot Kinney Co. v. City of Los Angeles, supra.) Section 830, therefore, clearly establishes a rebuttable presumption. (See Evid.Code, § 602.)

The presumption provided for in section 830 is one affecting the burden of proof since it is a presumption which, in addition to the policy of facilitating the trial of actions, is established to implement the public policy favoring the stability of titles to property. (See Evid.Code, § 604, and Legislative Comm. comment thereto; and see Munger v. Moore, 11 Cal.App.3d 1, 9, 89 Cal.Rptr. 323.) Accordingly, the effect of this presumption in the present case was to impose upon plaintiffs the burden of proving the nonexistence of the presumed fact, i. e., that the subject patent conveyed title to the ordinary high water mark. (See Evid.Code, § 606; and see Munger v. Moore, supra.) This burden required that plaintiffs prove the nonexistence of the presumed fact by a preponderance of the evidence. (See Legislative Comm. comment to Evid.Code, § 606.) Whether there was a preponderance of the evidence proving the nonexistence of the presumed fact was a question for the trial court. (Overton v. Vita-Food Corp., supra, 94 Cal.App.2d 367, 370, 210 P.2d 757; Phillips v. Standard Acc. Ins. Co., supra, 180 Cal.App.2d 474, 480, 4 Cal.Rptr. 277; Wadleigh v. Phelps, 149 Cal. 627, 637, 87 P. 93; Beeler v. American Trust Co., 24 Cal.2d 1, 7, 147 P.2d 583.)

In the present case there is conflicting evidence from which conflicting inferences could be drawn on the intent of the State in issuing the subject patent to plaintiffs' predecessor. The trial court resolved that evidence in favor of plaintiffs and determined by such resolution that plaintiffs established, by a preponderance, substantial evidence contrary to the presumption provided for in section 830. Under familiar appellate principles we must, where there is such conflicting evidence, accept as established that evidence which is favorable to plaintiffs. That evidence is sufficient to sustain the trial court's findings of fact to the effect that it was the intent of the State to grant title by the subject patent to the low water mark.

The State contends that, assuming a state conveyance of the disputed tidelands, they are nevertheless subject to a retained easement for the purpose of navigation and fishing. We are asked, on this appeal, to declare the reclaimed salt marsh land and backwater channel northeastward of the island, which was included in the subject patent, to be subject to such an easement. It is conceded that this issue was not presented, and that such relief was not sought, in the trial court. Under established appellate procedure we decline now to consider this contention upon the principle that points not urged in the trial court may not be urged for the first time on appeal. (Damiani v. Albert, 48 Cal.2d 15, 18, 306 P.2d 780; Red Bluff Developers v. Tehama County, 258 Cal.App.2d 668, 676, 66 Cal.Rptr. 229; Doyle v. Surety Title & Guar. Co., 261 Cal.App.2d 525, 528, 68 Cal.Rptr. 177.)

The judgment is affirmed.

I dissent.

In my opinion the trial court, and today this court, have erred in three important respects. They have erroneously concluded (1) that ‘substantial evidence’ supports the trial court's finding and judgment, (2) that Civil Code section 1069 is inapplicable, and (3) that Civil Code section 830 is also inapplicable.

Although a finding of a trial court or jury will be supported if based upon substantial evidence (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784–785, 59 Cal.Rptr. 141, 427 P.2d 805), our Supreme Court has long recognized that a readiness to accept any evidence as substantial must often lead to a miscarriage of justice. Discussing the substantial evidence rule that court has said (Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689) that ‘The critical word in the definition is ‘substantial’; it is a door which can lead as readily to abuse as to practical or enlightened justice.' Accordingly, ‘substantial evidence’ must be of “ponderable legal significance. Obviously the word cannot be deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.” (People v. Bassett, 69 Cal.2d 122, 138–139, 70 Cal.Rptr. 193, 203, 443 P.2d 777, 787; United Professional Planning, Inc. v. Superior Court, 9 Cal.App.3d 377, 393, 88 Cal.Rptr. 551; Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54.)

In a discussion of the rule it has been said, ‘Implicit in our duty to determine the legal sufficiency of evidence to sustain a verdict is our obligation, in a proper case, to appraise the sufficiency and effect of admitted or otherwise indubitably established facts as precluding or overcoming, as a matter of law, inconsistent inferences sought to be derived from weak and inconclusive sources. Not every surface conflict of evidence remains substantial in the light of other facts.’ (Emphasis added; People v. Holt, 25 Cal.2d 59, 70, 153 P.2d 21.)

The case of plaintiffs and respondents White and the trial court's decision rested entirely on the testimony of witnesses Passarino and Robinson.

Before our discussion of the testimony of those witnesses it seems well to point out that the land with which we are concerned was part of an island in Petaluma Creek (sometimes called Petaluma River) shown on a United States Coast and Geodetic Survey map of 1860. A patent of the island, for reclamation purposes, was applied for in 1872. The county surveyor as provided by law thereupon made a survey of the land. Starting at a ‘stake in a bed of broken glass' he described and bounded the area by courses and distances. He encountered difficulties, reporting ‘So swampy a perfect survey cannot be made.’ Eight years later the island was patented to one of respondents' predecessors in interest. The land was bounded and described by the courses and distances earlier fixed by the county surveyor. Since then the ‘stake’ and the ‘bed of broken glass' into which it had been driven have disappeared, thus making the county surveyor's starting point uncertain.

Nevertheless, the courses and distances and the outline of the patented land's plat are certain; the difficulty lies as to just what land is covered by the plat. It is as though one had a geographical outline of the State of California, and was given the task of properly placing it on an unmarked map of North America drawn to the same scale. The county surveyor's plat somewhat closely, considering the difficulties encountered, follows the high-water line of the island on its north and west and south sides.1 The state contends that this is the land covered by the patent; if so the claim of respondents White must fall, for the land at issue would then be outside of the patent's boundaries.

Respondents White argue (and they are supported by their expert witnesses) that the patent's palt must be moved from that position in directions about 700 feet south and 300 feet west. This generally brings the plat's western boundary to the position of the island's low-water line with which we are concerned. But in doing so it leaves the northerly 700 feet of the island uncovered, and to the south a corresponding amount of water and off-shore land covered, by the patent's plat.

The witness Passarino:

From a view most favorable to respondents White this witness' testimony may be summarized by his statement, ‘After inspection of swamp and overflowed surveys in this general vicinity and lack of munumentation other than swamp and overflow No. 58, and putting all of the surveys together, I came to the conclusion’ that the survey plat should be positioned as claimed by respondents White.

But the witness was obliged to testify further. He conceded that in so ‘positioning’ the survey's plat he in fact went outside and beyond the land described by the patent's courses and distances. He explained that to make the plat cover the tidelands at issue he ‘had to adjust.’ (Emphasis added.) By this he meant that he ‘relocated’ the westerly line of the patent. (Emphasis added.) He then explained that he went ‘out of the boundary line to do that.’ (Emphasis added.)

The witness' justification for ignoring the patent's actual boundary line was to bring the stated acreage (934 acres) of the patent closer to that enclosed by its courses and distances (about 888 acres). He reasoned: ‘The only place that I know of that the area could be balanced, would have to lie in this area between the described patent line’ and the low-water mark of the river. (Emphasis added.)

It has been consistently held that a deed's statement of the amount of property conveyed is the ‘least reliable of all descriptions of land.’ (Verdi Dev. Co. v. Dono-Han Mining Co., 141 Cal.App.2d 149, 154, 296 P.2d 429; Phelps v. Pacific Gas & Elec. Co., 84 Cal.App.2d 243, 248, 190 P.2d 209.) And it is also established law that while a statement of acreage in a deed may be of aid in fixing a doubtful boundary, it ‘is not at all conclusive or controlling as to the quantum of land in the tract; * * *’ (See Hostetter v. Los Angeles Terminal Ry. Co., 108 Cal. 38, 42, 41 P. 330; Den v. Spalding, 39 Cal.App.2d 623, 631, 104 P.2d 81.) Indeed, plaintiffs make no serious contention to the contrary. In their brief they finally concede that ‘there is no question that a recital of excess or shortage in acreage is not grounds for altering the boundaries in a patent. * * *’ Here the witness seems not to have found the pertinent boundary of the patent to be doubtful; instead he had to ‘adjust’ and ‘reposition’ it in order to bring the acreage ‘reasonably close to the area that was in the patent.’

As proof that the patent's westerly boundary line extended to Petaluma Creek's low-water line, the testimony of the witness can hardly be said to be ‘reasonable in nature, credible, and of solid value’ (see People v. Bassett, supra, 69 Cal.2d 122, 138, 70 Cal.Rptr. 193, 443 P.2d 777); it is not ‘substantial evidence.’

The witness Robinson:

This witness was a title insurance company employee. He took no field measurements and made no attempt to develop physical information on the ground. His ‘inspection’ of the subject property was by means of an aerial ‘photo map.’ Unlike the other witness he was not ‘too concerned with the acreage.’

Looking through ‘title records seeking old deeds' he came to ‘the conclusion’ that a point by Lakeville Road (apparently several miles from the island) ‘was a reasonably good position’ to start. (The emphasis of this paragraph is ours.) So he said, ‘I started searching, going back and forth until I found the line here that seemed to line up with my record.’ He was led to ‘believe that [his] positioning was relatively close to what the people had been doing with the land.’ He then ‘plotted in the rest of the S and O's and there is where it fell, somewhere in the vicinity of this line [the disputed westerly low-water line].’ In his computations he ‘did find errors that would cause [him] to shift one way or another and [he] did try to reconcile them [apparently without success].’ Things ‘didn't quite fit here or there, and the dimensions were minor, 10 or 20 or 50 feet, something of that nature.’ One of the errors appears to have been where the Petaluma Rancho line on which he relied ‘doesn't meet.’ The errors apparently presented little difficulty for the witness said, ‘I just allowed errors to fall there’ at the river line. All of this caused him to ‘feel now [we] are relatively close to where I believe the original surveyor must have set his corners.’

The last mentioned guarded statement of the witness seem particularly interesting. After his ambiguous meanderings from a point several miles away during which he resolved all perplexing questions in favor of respondents, he ‘felt’ he was ‘relatively close’ to where he ‘believed’ the surveyor ‘must’ have set the line. Since we are dealing with the short distance between the island's low and high tide lines after the witness' study of several miles of uncertain courses and distances, the witness was also ‘relatively close’ to the island's high tide line.

Continuing his testimony, the witness said it ‘would appear to me that [the county surveyor] was working out to the visible water as it would normally be used by a boat,’ and that other ‘people were visibly looking at the creek and that he, perhaps, did also.’ The witness concluded that the original surveyor ‘was attempting to follow what appears to be the main channel of the Petaluma Creek’ where the water was ‘6, 12 and 18 feet’ deep and well beyond even the low tide line. (The emphasis of this paragraph is ours.)

If one were to consider credible this witness' conclusion based upon such a pyramiding of uncertainties, he must go further; he must also believe that the State of California by its reclamation patent demanded the reclamation of a river, navigable by law2 and in fact,3 to a point somewhere in its main channel. A similar patent on the other shore followed by the required reclamation would have resulted in the damming of the river, or at least a 2-mile long sluiceway in which its waters would be narrowly confined.

The testimony of witness Robinson also falls far short of meeting the substantial evidence rule.

Under any reasonable standard respondents White have failed to meet their burden of proving title to the tidelands in question. (See 41 Cal.Jur.2d, p. 556.)

But there are other clear inferences which must necessarily be drawn which further tend to reduce the already insignificant weight of respondents' proof.

It is a well known rule that if a conveyance is uncertain as to the land conveyed ‘the most reliable circumstance in aid of such construction is the practical construction given it by the acts of the parties' during the years immediately following its execution. (Yocco v. Conroy, 104 Cal. 468, 471, 38 P. 107; see also People v. Ocean Shore Railroad, 32 Cal.2d 406, 414, 196 P.2d 570; Gramer v. City of Sacramento, 2 Cal.2d 432, 440, 41 P.2d 543.) It has been said that: ‘This rule of practical construction is predicated on the common sense concept that ‘actions speak louder than words.’ Words are frequently but an imperfect medium to convey thought and intention. When the parties to a contract perform under it and demonstrate by their conduct that they knew what they were talking about the courts should enforce that intent.' (Crestview Cemetery Assn. v. Dieden, 54 Cal.2d 744, 754, 8 Cal.Rptr. 427, 433, 356 P.2d 171, 177.)

Here a statutory condition of the original patent on which respondents rely provided that the patented land shall be reclaimed. The 1880 patentees, performing according to their obligation, reclaimed the land up to the high-water mark where they built a levee. The patentees, who undoubtedly had available to them the ‘stake in a bed of broken glass' and therefore the means of exact delineation of their land, obviously understood that their land ran only to the high-water mark of Petaluma Creek. It was not until many years later, when land values had increased enormously, that the patentees' successors in interest abandoned the old levee and built another in the bed of the river.

Moreover, it defies reason to conclude that in response to a patent application for the subject ‘island,’ the state would grant a patent whose delineated plat was of the island's shape, but which nevertheless was intended to omit the island's northern-most 700 feet, while at the south it crossed a saltwater channel and extended onto land apparently patented to others.

Assuming, arguendo, some modicum of substantial evidence otherwise tending to support the trial court's judgment, the judgment was nevertheless erroneous by the operation of Civil Code sections 1069 and 830.

Civil Code section 1069, as relevant here, states:

‘[E]very grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.’

It has repeatedly been held that where an ambiguity exists in such a grant the provisions of section 1069 are mandatory; the ambiguity must be resolved in favor of the grantor public officer or body. (See Los Angeles v. San Pedro, etc. R. R. Co., 182 Cal. 652, 654–655, 189 P. 449; Oakland v. Oakland Water Front Co., 118 Cal. 160, 174–175, 50 P. 277; City of Los Angeles v. Howard, 244 Cal.App.2d 538, 545, 53 Cal.Rptr. 274.) The majority opinion declares the subject patent to be ambiguous as to the extent of land conveyed. It follows as a matter of law that such ambiguity must be resolved in favor of the grantor, State of California.

Civil Code section 830, as amended 1873–1874, and as pertinent here, states: ‘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; * * *’

Section 830 codifies a preexisting common law rule (Drake v. Russian River Land Co., 10 Cal.App. 654, 660, 103 P. 167), which has been consistently applied. (See Borax Ltd. v. Los Angeles, 296 U.S. 10, 22–23, 56 S.Ct. 23, 80 L.Ed. 9; United States v. Pacheco, 69 U.S. 587, 590, 2 Wall. 587, 17 L.Ed. 865; Abbot Kinney Co. v. City of Los Angeles, 53 Cal.2d 52, 57–58, 346 P.2d 385; Boone v. Kingsbury, 206 Cal. 148, 191–192, 273 P. 797; Long Beach Land and Water Co. v. Richardson, 70 Cal. 206, 209, 11 P. 695; Den v. Spalding, supra, 39 Cal.App.2d 623, 632–633, 104 P.2d 81.) The rule is particularly applicable to governmental patent grants. It was said in Los Angeles v. San Pedro etc. R. R. Co., supra, 182 Cal. 652, 655, 189 P. 449, 450: ‘It is held that a grant from the sovereign of land bounded by the sea or by any navigable tide water does not pass any title below high-water mark unless either the language of the grant or long usage under it clearly indicates that such was the intention.’ The subject patent which is in evidence admittedly discloses no intent to convey the tidelands of Petaluma Creek beyond the ordinary high-water mark. By virtue of section 830 respondents White and their predecessors in interest, as a matter of law took only to ‘ordinary highwater mark.’

Furthermore, the trial court and the majority of this court have allowed the common law presumption that the patent did not grant tidewater lands to go unheeded. It was said in Los Angeles v. San Pedro etc. R. R. Co., supra, 182 Cal. 652, 655, 189 P. 449, 450: ‘Had the government found the claimant entitled to the bed and banks of a tidewater stream, we must suppose it would have used in the patent apt words for its conveyance. Not having done so, the presumption is, that it was not intended to convey the bed of the stream. * * *’ (Emphasis added.)

For the reasons stated I would reverse, and direct the superior court to enter judgment in favor of the State of California.

It is noted that although the point was not raised at the trial proper, the defendant State of California before judgment urged that in any event a public easement for navigation and fishing was retained in the water below the high-water mark. The trial court consented to determine this question which apparently presented an issue of law only. The court concluded that the state had no such easement, and made findings and entered judgment accordingly. It would seem proper, if the judgment is otherwise affirmed for the reasons stated by the majority, that the issue of the ‘public easement for navigation and fishing’ also be resolved by this court.

It is also observed that respondents White concede that the judgment is in part erroneous, and suggest a modification ‘to provide that plaintiffs' title is quieted against the State of California except that any portion thereof lying below the present line of mesne high tide is subject to the public easement for commerce, navigation and fishing.’

FOOTNOTES

1.  Tidelands are defined as the ‘land lying between the ordinary high and low tide lines.’ (People v. California Fish Co., 166 Cal. 576, 583, 138 P. 79.)

2.  The patent was dated March 9, 1880 and was recorded on October 28, 1882.

3.  Civil Code section 830, in pertinent part provides: ‘Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide-water, takes to ordinary highwater mark; * * *’ Civil Code section 1069, in relevant part, provides: ‘[E]very grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.’

4.  It is conceded by both parties that even if plaintiffs$ land extended to the low water mark it would be far short of the 934.65 acres called for in the patent.

5.  This finding is not disputed.

6.  This finding is not disputed.

7.  Although a trial judge's memorandum of decision may not be used to impeach, modify, or add to his findings, it may be used for the purpose of discovering the process by which he arrived at his conclusion. (Henderson v. Fisher, 236 Cal.App.2d 468, 472, 46 Cal.Rptr. 173; 1st Olympic Corp. v. Hawryluk, 185 Cal.App.2d 832, 838, 8 Cal.Rptr. 728; Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750, 47 P.2d 273.)

8.  Unless otherwise indicated, all statutory references are to the Civil Code.

1.  The surveyor's plat did not attempt to follow the east side of the island which merged into salt water mud flats.

2.  See Compiled Laws of California, 1850–1853, Chapter CXCVII, page 916; Harbor and Navigation Code section 104.

3.  As recently as 1965, according to a publication of the United States Army Corps of Engineers, January 1, 1967, ‘Water Resource Development in California,’ 305,000 tons of freight were carried on the river.

MOLINARI, Presiding Justice.

SIMS, J., concurs.