This action was brought in Yolo county to quiet title to a twenty-seven acre tract of land located near the Sacramento river. In the complaint the land was described as a certain part of the northwest quarter of section 19 in township 11 north, range 3 east, Mt. Diablo meridian. On the trial defendant (appellant here) objected to the talcing of any testimony because it appeared from the complaint that the land in controversy was situated in Sutter county, "and the action was not commenced in Sutter county but in Yolo county.” The objection was overruled and appellant excepted. The judgment was for plaintiff, and within sixty days after its entry Pool appealed to this court.

The objection made went to the jurisdiction of the court, and we think it should have been sustained and the case dismissed. From the description, by government subdivisions, given in the complaint, and the plat made part thereof, the court, we think, should have taken judicial cognizance that the land lay in Sutter county. (Rogers v. Cady, 104 Cal. 290 . )

The question is one of statutory construction, and in the absence of any direct authority to guide us is not free from difficulty, as will be seen from the following statement:

It must be conceded, we think, from what appears in the record, that there was an actual change in the river so as to throw the land in question on the Sutter side of the running stream, at least as early as 1863. It is conceded, however, that this change in the river did not change the county boundary. (See Missouri v. Kentucky, 11 Wall. 395 ; Nebraska v. Iowa, 143 U. S. 359 .) But it appears from the statutes of 1866, page 163, that the legislature in that year passed an act entitled, “An act to more clearly define and establish the boundary line of Yolo county,” and in the same year another act was passed “more clearly to define the boundaries of Sacramento, Sutter and Placer counties.” (Stats. 1866, p. 223.) Prior to this, in 1864, the legislature had passed another “act to define the boundary lines of the county of Sutter.” (Stats. 1864, p. 301.) In all the statutes hereinabove referred to the boundary line between Yolo and Sutter counties is described as “the middle” of the Sacramento river.

The question presented for decision is, Was the boundary between the two counties changed from the middle of the old river to the middle of the new by the acts of 1866 ? The language of these acts seems to indicate an intention on the part of the legislature to make several changes therein and define anew the boundaries of the respective counties. Neither act is by its terms amendatory of any former act, but the second section of the statute defining the boundary of Yolo county (Stats. 1866, p. 162) reads as follows: “An act entitled an act to define the lines of Yolo county, and to establish its boundaries, approved March 26, 1857, is hereby repealed”; and the act defining the boundaries of Sutter county (Stats. 1866, p. 223) recites that “all acts and parts of acts, so far as they conflict with this act, are hereby repealed.” We, therefore, must presume that the legislature used the language defining the boundary advisedly, and intended to fix the middle of the Sacramento river, as said river ran at the date of the passage of the acts, as the boundary between the two counties.

There is no contention that sections 3926 and 3929 of the Political Code were intended to work any change in the disputed boundary as defined in the acts of 1866, nor is any question made as to the power of the legislature, under the constitution of the state as it existed prior to 1880, by enactment to change the boundaries of counties and establish new boundaries of counties as it saw fit.

For the foregoing reasons we think the land in dispute is in Sutter county, and that the superior court of Yolo county did not have jurisdiction of the cause. (Const. 1880, art. VI, sec. 5.)

The judgment is reversed.

43 Am. St. Rep. 100 .