Argument for Appellant.

constituted him the equitable assignee of the certificate of sale, and subrogated him to the rights of Josephi himself as the purchaser of the property at the foreclosure sale.

I see no error in the judgment-certainly none against the appellant.

Judgment affirmed.

SPRAGUE, J., expressed no opinion.

No. 2,387.

THE PEOPLE OF THE STATE OF CALIFORNIA, APPELLANTS,
P. HENDERSON and CERTAIN REAL ESTATE, RESPONDENT.

MEASUREMENT OF DISTANCE ON A NAVIGABLE STREAM.-Where a certain distance is called for from a given point on a navigable stream to another point on the stream, the measurement must be made by its meanders and not in a straight line.

IDEM. ON A PUBLIC HIGHWAY.-The same rule prevails when the distance is called for upon a traveled highway. BOUNDARY ON A NAVIGABLE STREAM.-When a tract of land is bounded upon a navigable stream, the distance upon the stream will be ascertainedin the absence of other controlling facts-by measuring in a straight line from the opposite boundaries. BOUNDARY LINE BETWEEN MERCED AND STANISLAUS COUNTIES.-The Act of February 13, 1868, to define the boundary line between Merced and Stanislaus counties was operative to establish the boundary as indicated at once upon its passage, and was not dependent upon the surveys.

APPEAL from the District Court of Thirteenth District, Merced County.

This action was tried by the Court and judgment entered in favor of defendants. Plaintiff moved for a new trial, which was denied; from the judgment and order denying the motion for a new trial this appeal is taken.

The other facts are stated in the opinion.

Jo Hamilton, Attorney-General, for Appellant.

First-It was the intention of the Legislature, in ordering a survey to be made, to make the survey determine the

Argument for Respondent.

boundary between the initial points, where no natural boundary is given; and, until the survey is made which is to fix the line, the jurisdiction on the line to be surveyed remains as left by the Act of March 8, 1866.

If

Second-The survey was not made until long after the time when the lien for taxes had accrued to Merced. Stanislaus acquired the territory after the lien accrued she did not thereby acquire any right to the taxes of that year. (Moss v. Shear, 25 Cal. 38.)

Third-Taking the language of the statute, it is apparent that the Legislature did not intend to be understood as respondents contend.

"Beginning at the Stakes monument, thence in a straight line to a point on the San Joaquin River seven miles below the mouth of the Merced River."

This is the first call in the boundary mentioning the river. The line commences straight, and runs to a point in the river, and as if to show that it was not the intention of the Legislature to make this seven miles by the meanders of the river, they make the river by its meanders the line from that point up to the mouth of the Merced.

John W. Armstrong and Thomas A. Caldwell, for Respondents.

First — In taking the distance from one point to another on a navigable river, the measurement should be by its meanders and not in a direct line. (Johnson v. Pannell's Heirs, 2 Wheaton, 206; 4 Peter's Condensed Rep. 84; 4 Curtis' Rep. 79.)

So also where the distance called for is upon a road. (Bodley v. Taylor, 5 Cranch. 191; Hite v. Graham, 2 Bibb. 144-5; McKee v. Bodley, Id. 482; Whittaker v. Hall, Id. 79; Craig v. Hawkins, Id. 53.)

This rule was recognized in Kimball v. Temple. (25 Cal. 449.)

"It is well settled by numerous authorities that where a river is named as a boundary, the boundary line follows the meanders of the stream." (Hicks v. Coleman, 25 Cal.

142; Greenleaf v. Kilton, 11 N. H. 531; Luce v. Carley, 24 Wendell, 451; Morrison v. Keen, 3 Greenleaf, 474; Devaston v. Payne, 2 Smith's Lead. Cases, and 243-4, and cases therein cited.)

Second The taxes levied on the land described in the complaint in this action, for the fiscal year A. D. 1868, by the Board of Supervisors of Merced County, prior to the passage of the Act of the Legislature defining the boundary line between the counties of Stanislaus and Merced, approved February 13th, 1868, (Stats. 1867-8, p. 56,) did not become a lien upon said land in the county of Merced, at the time the taxes were levied thereon, and the taxes so levied on said land in Merced County never attached as a lien thereon, and were not payable in said county.

The Board of Supervisors in each county in this State were authorized and required by law to levy the taxes for the fiscal year A. D. 1868, at any time between the 28th day of February and the first Monday of April in said year, and the act of the Board of Supervisors in levying the taxes in Merced County for the fiscal year 1868, prior to that time, was an absolute nullity. (See Statutes 1867-8, p. 82.) The land described in the complaint was, on and after the 13th day of February, A. D. 1868, situated in the county of Stanislaus, and the taxes for said fiscal year thereon duly levied by the Board of Supervisors of Stanislaus County prior to the first Monday of April, A. D. 1868. When such taxes became a lien upon said land, which could not be satisfied or removed until all the taxes thereon assessed were paid, or the land vested absolutely in a purchaser under a sale for taxes. (Stats 1867-8, pp. 56, 82-3; Moss v. Shear, supra; Ex parte Corbett, unreported case July Term, 1867.)

TEMPLE, J., delivered the opinion of the Court; CROCKETT, J., RHODES, C. J., and WALLACE, J., concurring.

By an Act approved February 13, 1868, the Legislature established the permanent boundary between the counties.

Opinion of the Court-Temple, J.

of Stanislaus and Merced. The first line called for in that Act is from a monument "at the southwest corner of Tuolumne County and the southeast corner of Stanislaus County, in a straight line to a point on the San Joaquin River, seven miles below the mouth of the Merced River." By the second section of the Act the County Surveyors of the two counties were required, within ninety days after the passage of the Act, to survey and mark the line as established. The surveyor of each county complied with this requirement, but the surveyor of Stanislaus County run the first line to a point on the San Joaquin River, seven miles below the mouth of Merced River, measured by the meanders of the San Joaquin River, while the surveyor of Merced County run to a point on the San Joaquin River seven miles below the mouth of the Merced, measured in a straight line. The defendant lives between these two points, and this suit is brought to collect taxes assessed against him in Merced County for the fiscal year 1868. The defense is that the land against which the taxes were assessed is in Stanislaus County, and had been duly assessed in that county and the taxes paid.

There seems to be no conflict whatever in the authorities, that where a certain distance is called for from a given point on a navigable stream to another point on the stream, to be ascertained by such measurement, the measurement must be made by its meanders and not in a straight line, and the same rule prevails when distance is called for upon a traveled highway. A different rule is sometimes adopted when the stream is not navigable. When a tract of land is bounded upon a navigable stream, the distance upon the stream will be ascertained-in the absence of other controlling facts-by measuring in a straight line from the opposite boundaries.

The San Joaquin River has been declared navigable to Tulare Lake, and there is nothing in the Act in question to indicate that a different rule was intended to be adopted to ascertain the line in controversy.

We think it very plain that the Act was operative to establish the boundary as indicated at once, upon its passage,

Points decided.

The surveys

and was not dependent upon the surveys. were intended to mark the line which had been established by the Legislature. It follows that, at the time the taxes were levied, the land described in the complaint was not in Merced County, and the taxes assessed in that county never became a lien.

Judgment and order affirmed.

SPRAGUE, J., expressed no opinion.

No. 2,464.

ADAM T. FARISH et al, RESPONDENTS, . HENRY P. COON et al, APPELLANTS.

SCHOOL LAND WARRANTS-LOCATION OF.-Under the Act of May 3, 1852, "to provide for the disposal of the five hundred thousand acres of land granted to this State by Act of Congress," school land warrants can only be located on lands belonging to the United States subject to such location.

IDEM. TIDE LANDS.-Lands covered by the ebb and flow of the tide are not subject to location with school land warrants; nor does the locatior of such lands with school land warrants confer on the locator a right to the possession as against the true owner, or amount to a color of title. IDEM. Where school land warrants are located on lands belonging to the State not subject to such location, the State is not estopped from asserting title to such lands by the fact that the purchase money for the warrants was paid into the State Treasury, and has never been refunded, or offered to be refunded.

IDEM. The purchaser of school land warrants was bound in law to know that they could only be located on lands belonging to the United States. IDEM. Where such warrants were, through mistake, located on other lands not subject to location, the only remedy was to float the warrants and locate on other lands.

IDEM.-Neither the United States Register for California, nor the SurveyorGeneral of the State, have authority to approve the location of school land warrants on tide lands belonging to the State.

ESTOPPEL. Equitable estoppels are founded solely on the theory, that to permit the party to maintain the right which he asserts would operate as a legal fraud upon his adversary.

PLEADING, CONSTRUCTION OF.-In construing a pleading, it is not permissible to take an isolated sentence, separated from its context, and give effect to it as an independent averment, unless upon the whole pleading it appears to have been so intended.

VOL. XL.-3