Martin

I dissent. The evidence, in my opinion, fully sustains the conclusion that neither bank of the Salinas River, as it existed in the years 1858-61, could be traced on the ground at the time this controversy arose. The course of the river had very greatly changed. At some points it had cut off portions of the Moro Cojo ranch, at others it had cut off portions of the Rincon de las Salinas, and these changes had been suddenly wrought, during high floods or freshets. At the places where the current had left the old channel, the space between the banks had been filled with sediment and overgrown with willows. The existing banks of the river no longer constituted the true boundaries of the respective tracts, and the old banks were no longer to be found.

If the owners of the Moro Cojo, the appellants, extended their possession to the right bank of the river, they would take land of the respondents, owners of the Rincon de las Salinas, and vice versa. Such being the case, I know of no means of determining the rights of the parties, except to retrace the patent lines of the two ranches, by following courses and distances, according to the field-notes, between such natural or other monuments…

This is an action to quiet title to a tract of land which the plaintiffs allege lies within the rancho Rincon de las Salinas, of which they are the owners, as tenants in common, seised in fee. The defendants deny that the plaintiffs are the owners of said tract of land, and aver that the same is a part of the rancho Moro Cojo, of which the defendants are the owners in fee. The court found in favor of the plaintiffs upon all the material issues, and decreed accordingly. Defendants moved for a new trial, which was denied, and from that order, and from the judgment, defendants appeal.

It was incumbent upon the plaintiffs "to prove that the lands in controversy are within the rancho Rincon de *98 las Salinas. Whether they are or not depends upon the location of the northeasterly line thereof, which, according to the patent issued to the plaintiffs' grantor, is along the left bank of the Salinas River. The rancho Moro Cojo, under which defendants claim, lies upon the opposite side, and is bounded by the right bank of the river. The patent of neither rancho calls for the other as a coterminous boundary, but each is described as being hounded, along the sides which are nearest each…

I concur in the judgment; but I do not concur in the main reason given for it in the leading opinion. Upon this present record, I think that the court below was justified in finding that the bank of the Salinas River, as it existed in 1861, cannot now be found or traced; and that, in the absence of that monument, it was proper to adopt the courses and distances given in the patent as establishing the boundary line. The evidence was not only conflicting on the point, but the weight*of it was, in my opinion, with the finding. I think, however, that the evidence (although I am not without doubt on the subject) was not sufficient to support the conclusion that the true line of the Salinas rancho, run by courses and distances, is where the judgment establishes it to be. That line was never actually run by the surveyors who testified to it; but it was calculated and assumed from other data which I do not think sufficient to support the conclusion. They seem to have fixed a new line, rather than to have found an old one.

The case is a difficult one; and I doubt if a judgment will ever be obtained more favorable to appellants than this one from which they appeal. It is evidently a proper…