Banning

This is an action of ejectment for the recovery of the possession of a tract of land, comprising eighteen and eighty-eight hundredths acres, commonly known as “Mormon Island,” situate in the inner bay of San Pedro, in the county of Los Angeles. Defendant had judgment, from which, and *322 an order denying a motion for a new trial, plaintiffs appeal. Plaintiffs claim under a Mexican grant, alleged, in the petition for confirmation thereof introduced and received in evidence, to have been made early in the present century, under which it is claimed that juridical possession was given in 1817, and that the same was repeatedly acknowledged by the Spanish and Mexican governments, and particularly so by a decree of the governor of the province of California, dated December 31, 1822; of which grant, confirmation was made by the district court of the United States, February 10, 1857, and patent thereon issued December 18, 1858. Defendant claims under a patent issued by the government of the United States, as upon a sale of the property as government land, describing the same as lot No. 1 of section 8,- in township 5 south, range 13 west, San Bernardino meridian, in California, dated…

I dissent. This is a pure action of ejectment. Plaintiff’s asserted title to the demanded premises rests upon a patent of the United States issued for a Mexican grant under the act of Congress of March 3, 1851. By the thirteenth section of that act it is provided that after a claim under a Mexican grant shall have been confirmed, “a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such confirmation, and a plat or survey of the said land duly certified and approved by the surveyor general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same.” In the case at bar, plaintiffs claim title under a patent for a tract of land known by the name of “San Pedro.” The patent recites a plat and survey made under said thirteenth section of said act of March 3, 1851, and contains full copies of such survey and plat; and it then conveys to the grantees “the tract of land embraced and described in the foregoing survey.” There is no other description of the land granted. Now, “the foregoing survey” does not include the land sued for in…

I concur in reversing the judgment and order herein, but for other reasons than those stated in the *329 opinion of Justice Fox. I am of opinion that the decree of confirmation of the Rancho San Pedro includes what is called the “Inner Bay of San Pedro.” The patent, however, contains a reservation from grant, which reservation is confined to and embraces only that portion of the inner bay above mentioned which is covered by the navigable waters of the bay. It appears from the testimony that Mormon island is not so covered. It is not so covered by the waters of the bay at ordinary high tide. I am of opinion that plaintiff is entitled to recover the island, and such other portion of the tract of land sued for, described in the complaint as containing eighteen and eighty-eight hundredths acres, as is not covered by the navigable waters of the inner bay aforesaid. The judgment and order should be reversed and the cause remanded, that the limits of such portion may be determined by the court below, and, when so determined, judgment should be rendered for it in favor of the plaintiffs.