King

Action to quiet title. • The controversy concerns the title to certain swamp and overflowed land in sections 27 and 28, township 15 south, range 23 east, Mount Diablo base and meridian, situated in Fresno county. The land in question is that portion of said sections, embraced in survey number 593, lying on the east side of Kings river. The survey is particularly described in the complaint by metes and bounds, “as described in patent of the State of California to W. T. Cole, recorded May 1, 1888, in Book of Patents, at page 41, Records of Fresno County.” Plaintiff alleged ownership in fee on and ever since April 13, 1901. A general demurrer to the complaint was overruled and defendant Samuel alone answered. He denied plaintiff’s alleged ownership, and alleged on his own behalf upon information and belief “that he is and long prior to the commencement of this action (complaint filed May 25, 1904), was, and ever since has been the owner in fee of all that portion of swamp and overflowed land survey numbered 593, lying east of the center of the channel of Kings River . . . and within sections 27 and 28 . . . which said land, as defendant is informed and believes, is the land attempted…

Petition for rehearing. We do not feel called upon to write opinions in all cases where rehearings are denied or granted, and where we fail to do so it is through no indifference to the views of counsel, but because our attention is invited to no question, necessary to the decision, which has not in our judgment been sufficiently noticed. Where some more or less vital question has been overlooked or insufficiently treated it would seem but just that further consideration to it should be given. The court invites careful scrutiny of its decisions and deems it a favor to be given an opportunity to correct errors which it may have committed.

Our attention is now invited to two points which counsel urges were either overlooked or not given due consideration. It is said that we “overlooked, as did the court below, the provisions of section 1069 of the Civil Code, which provides that a grant between private parties is to be interpreted in favor of the grantee”; and it is urged that if the several parts of a grant are absolutely irreconcilable, the former prevails. (Civ. Code, sec. 1070.) Where the question is simply one of construction the code rule should be followed. But the general…