Action in ejectment. Defendants had judgment, and plaintiffs appeal from the judgment and order denying their motion for a new trial.

The plaintiffs deraigned title through a United States patent, issued to John Bidwell in 1866, to a tract of land, described in said patent, on the western bank of the Sacramento River,, having said river for its eastern boundary. This patent was founded on a Mexican land grant, made in November, 1844, purporting to grant a tract of land containing four square leagues, known as Ulpinos, duly and finally confirmed by the United States courts. Sacramento River is, and was at all times named herein, a navigable stream. There is no question but that the patent conveyed the land therein described, having for its eastern boundary the western bank of said river at ordinary high-water mark.

The main controversy here is as to about one hundred and forty acres of land formed by accretions in the said river, mostly after the issuance of the' patent. The facts cannot be more fully and concisely stated than the following contained in the statement on motion for a new trial,—to-wit:—

We think, upon the foregoing facts, the court decided correctly as to the lands outside the calls of the patent. It is provided in the Civil Code (see. 1016): “Islands and accumulations of land, formed in the beds of streams which are navigable, belong to the state, if there is no title or prescription to the contrary.” The island was formed in the river and belonged to the state when it was listed as swamp and overflowed lands, in June, 1877. The accretions were to the island, and not to the lands described in plaintiffs’ patent. It is a familiar doctrine of the common law that the owner of land bounded by a river, being exposed to the danger of loss from its floods, is entitled to the increment which, from the same cause, may be gradually annexed to it. This upon the principle that he who bears the incidental burdens of an acquisition is entitled to its incidental advantages. Every person taking a grant of land on a river or other running stream takes the risk of losing a portion or all of his land by the action of the elements; on the other hand, he takes the chances of gaining and having added to his land by accretion the land-of his neighbor. It is also elementary that if an island springs up in a navigable stream, it belongs to the sovereign, and not to the owner of the land on either of the banks of the stream. So in this case the principle is the same, whether the island existed at the time of the confirmation of the Mexican grant, or was afterwards formed in the river. If the accretions had been to plaintiffs’ land, and had gradually extended to the island, the plaintiffs would have been the fortunate ones, and the accretions so added to theirs would have been theirs in law. This would have been so even if the island had been by imperceptible degrees washed away and wholly added to the lands of plaintiffs. But while the owners of the island took this chance, they also are entitled to the benefits of the new-made land added to their own and thus becoming a part of it. The question was elaborately discussed in Benson v. Morrow, 61 Mo. 347 , and it was there held that if alluvion forms to an island in the Missouri River belonging to the United States, and extends thence into the stream, so as to connect with another island, belonging to a private owner, he does not thereby become the owner of the alluvion so formed. In Naylor v. Cox, 114 Mo. 241 , the question was whether land made by accretions belonged to the owner of the land on the bank of the river, or to the owner of the island, who was the plaintiff in the case. The court approved as law the following instruction: “If the land in controversy was gradually added to, and formed against Naylor’s Island, and the water gradually receded from said island and ran next to the north shore, then the ‘made’ land between the slough and the island became part of the island, and if the defendant was in possession of any part of the land so formed, the finding should be for the plaintiff as to the part of the land so in possession of the defendant.” The same principles are applied in Fillmore v. Jennings, 78 Cal. 634 ; Buse v. Russell, 86 Mo. 209 ; Tatum v. City of St. Louis, 125 Mo. 647 ; Cooley v. Golden, 117 Mo. 33 ; Bigelow v. Hoover, 85 Iowa 161 ; Gould on Waters, 3d ed., sec. 115, and notes.

It is claimed by plaintiffs in their brief, and not controverted by defendants, that there is a strip of land of about twelve acres, consisting mostly of the old river-bank, included in the calls of the patent through which the plaintiffs deraign title, that is shown to belong to plaintiffs, and that the judgment is wrong as to this portion of the land, and should for this reason be reversed. We see no escape from this conclusion.

The complaint described the strip in connection with the land east of the fence and slough, and the court found that plaintiffs were “not the owners, nor entitled to the possession of any part of the lands described in the complaint.”

If the court had found the facts as to plaintiffs’ ownership, and that the defendants were not in possession of said strip, the difficulty would have been obviated. Defendants claim that the finding is immaterial, because the evidence shows that they were never in possession of the said strip. This being so,- the finding is contrary to the evidence, but we cannot for this reason eliminate that part of it from the case. The issue was as to all the land described in the complaint, and the court found in favor of defendants as to all of it. If the judgment in its present form were allowed to stand, it would be a bar to another action by plaintiffs as to the same land in the same right.

For the reason last herein stated the judgment and order should be reversed.

Chipman, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are reversed.

Henshaw, J., Temple, J., McFarland, J.

39 Am. St. Rep. 296 .