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151 FEDERAL REPORTER.

The appellee Mrs. Shores owned the mortgage premises as her separate property, and thus gave the security upon which the Billings contract for conveyance of the two-thirds interest in the mine to her was entered into. Her rights, both to satisfaction of the mortgage and conveyance of that interest, if the conditions thereof were performed on her behalf, are unquestionable. She was not a party to the salesagency agreements, nor bound for the performance thereof, nor interested therein beyond such equities as were conferred by the arrangements, respectively, to have proceeds thereunder applied upon her liability. If such proceeds accrued and the understanding of the parties met in their application to the extent of that liability, no further questions arise under the issues; and the conclusions of the trial court are well supported. The evidence upon this inquiry, direct and inferential, is not only convincing, but substantially without dispute, and may be thus summarized:

On December 31, 1897, after the close of shipments for that season, Tod, Stambaugh & Co. charged up in their account with Shores Mining Company $4,830.70 as the share of proceeds then applicable upon the $13,000, commutation of royalty, all payable under the terms of their agreement, in 1897, "whether earned or not." This is conceded to be the identical royalty provision made applicable for payments upon Mrs. Shores' mortgage and contract liability. To the extent thus applied, pro rata extinguishment of that liability is found by the trial court and undisputed. As explained in their letter of January 27, 1898, instead of charging up the entire sum of $13,000, which was agreed upon, Tod, Stambaugh & Co. "deemed it best for the present to charge the royalty on the actual amount of ore shipped from the dock," and were of opinion that such method could not "possibly disarrange matters in any way."

Operations under the sales-agency contract continued during 1898 and 1899, with no friction or misunderstanding disclosed by the evidence, and no further account was kept of royalties; nor does it appear that the matter of closing up that account and the contingent affairs of Mrs. Shores were referred to between any of the parties until May, 1899. As stated in one of the findings (12) of the trial court, Tod, Stambaugh & Co. kept an account, throughout the operations, "in which all advances by the firm for the company, all receipts from the sale of ore, commissions, and other matters were entered, and a copy of such account was sent to the Shores Co. each month"; and periodical interest charges were made.

On May 16, 1899, Mr. Shores wrote to Mr. Billings, inclosing weekly mine reports, and stating that their last monthly report was not received; also that he hoped to receive it before going "to Canada on Saturday next," together with "a release of the mortgage on Mrs. Shores' home and deed from you for her 2/3 of the land at mine." On May 18, 1899, Mr. Billings answered:

"Monthly statement goes forward to-day. In regard to the cancellation of the mortgage, it would be impossible to have this done before you go to Canada, but undoubtedly the papers will all be completed by the time you return. I do not think, however, that the papers should pass until the stock pile is weighed out. You need have no fears, however, but what the proper release will be made all the way through."

It further appears that Mr. Billings wired later that "the mortgage would be discharged and papers sent within two or three days"; moreover, that the "stock pile" subsequently weighed out in the shipments 11,701 tons, thus overrunning the mine report (referred to in Shores' letter), which was 10,803 tons. This correspondence was followed by the monthly statement for May, wherein the entry appears as of May 1, 1899, of "balance due for royalties on Shores' ore and interest on same to May 1, 1899," total amount $13,000, with the balance stated at $9,181, after charging up interest (compounded) at $1,011.70, and deducting the amount of royalty charged up December 31, 1897, $1,830.70.

The fact alone that the total of the royalty allowance which was to apply upon the mortgage was thus charged up to the Shores Mining Company would not amount to satisfaction of the mortgage indebtedness. It might well have been so treated by way of advancement upon their contract, for a reasonable time, without operating as a discharge of Mrs. Shores' liability. On the other hand, her mortgage was not made in terms applicable as security for the account of Shores Mining Company with Tod, Stambaugh & Co. in their various transactions; and it is obvious from all the circumstances that it was not so intended, and cannot be so treated. Its payment and satisfaction was not dependent upon the final state of account between those parties; nor was the appellant entitled to withhold discharge to abide such result in subsequent transactions and accountings. The meaning and effect of this May entry, therefore, must be ascertained in the light of the correspondence referred to, together with conditions then appearing, and irrespective of subsequent and unforeseen developments.

When Mr. Billings was thus called upon to close up the side transactions of mortgage and mine ownership, the operation under the salesagency agreement was about entering upon the third season, with satisfactory performance and results thus far, good output for the ensuing season reported in the "stock pile," and the proceeds in sight. of a sale of 12,000 tons of ore to Cleveland Rolling Mill Company, on which $13,080 was paid to Tod, Stambaugh & Co. July 11th. The just inference from the correspondence and prior circumstances, followed by the entry in their accounts, is unmistakable, as we believe, that Mr. Billings and his firm were satisfied, not only that Mrs. Shores was entitled to present application of the royalty charge in payment of her liability, but that the status of their affairs with the Shores Mining Company justified such action on their part, and so made the entry referred to as their acknowledgment of payment. That this was their understanding, at least of the security of their account with the mining company at that stage, is corroborated by the terms of their letter (in evidence) of May 11, 1899, to Ashland National Bank, accepting an order drawn by the mining company upon them, for payment of a claim held by the bank out of the mining company's balance in such account. None of the testimony is in substantial conflict with the view above stated, and no other explanation appears for charging up the balance of royalty and interest computations in the May statement.

With the evidence thus concurring to establish that there was mutual understanding of the parties in such settlement--and no different ver

151 FEDERAL REPORTER.

sion was set up on the part of the appellant or his firm until long afterwards, when new conditions had arisen-the rights of the appellees to the relief sought in these suits were unaffected by the subsequent transactions or state of accounts between Tod, Stambaugh & Co. and Shores Mining Company. So neither the items of that account nor the amount of unpaid indebtedness are within the present issues; nor is it needful to ascertain whether royalty or advances were entitled to preference under the agreements, or whether the "expenditure of a large amount of money in exploration work, from which it received no results" (vide appellant's brief), was rightfully treated as advances thereunder.

Each of the decrees appealed from conforms to the foregoing view, and each is therefore affirmed.

WESTERN PAC. RY. CO. v. SOUTHERN PAC. CO.*

(Circuit Court of Appeals, Ninth Circuit. February 4, 1907.)

No. 1,326.

1. MUNICIPAL CORPORATIONS-BOUNDARY-SHIP CHANNEL.

By Act Cal. May 4, 1852 (St. 1852, p. 180, c. 107), incorporating the town of Oakland, as construed by the Supreme Court of the state in City of kland v. Oakland Water Front Co., 50 Pac. 277, 118 Cal. 160, the boundof said town on the water front, defined in the act as running from point where the northeastern boundary intersects the southerly line of San Antonio creek or estuary; "thence down the southerly line of said creek or slough to its mouth in the bay; thence to ship channel; thence. northerly and easterly by the line of ship channel to a point where the same, bisects said northeastern boundary line," follows the line of low tide along the southerly side of the said estuary to its mouth in the bay; thence, crossing said estuary from headland to headland, follows the line of low tide in the Bay of San Francisco, as it then existed, to its intersec tion with the northeastern boundary-"ship channel" being construed as meaning the line of low tide, and the grant to the town in said act of "the lands lying within the limits aforesaid between high tide and ship channel"-included only tide lands lying between the high and low tide lines on the northerly side of the estuary and the bay front.

2. NAVIGABLE WATERS-LITTORAL RIGHTS LAW GOVERNING.

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The rights of littoral owners in adjacent navigable waters depend on the local laws of the several states, subject to the paramount authority of the United States to protect navigation and to make improvements in aid of the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 239-244.]

8. SAME-RIGHT TO WHARF OUT.

At common law no right to wharf out to navigable waters attached to the ownership of shore lands, and such right, if it exists, must be based on some legislation of the state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Navigable Waters, § 257.]

4. SAME-MUNICIPAL CORPORATIONS-CONVEYANCE OF LANDS ON WATER FRONT -CONSTRUCTION AND EFFECT.

Act Cal. May 4, 1852 (St. 1852, p. 180, c. 107), entitled "An act to incorporate the town of Oakland and to provide for the construction of wharves thereat," after creating the town, defining its boundaries, and providing for a board of trustees, vested in such trustees the power to make, regulate, and keep in repair all wharves, docks, etc., and further Rehearing denied March 4, 1907.

provided that, "with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid between high tide and ship channel are hereby granted and released to said town; provided that said lands shall be retained by said town as common property or disposed of for the purposes aforesaid," The town subsequently granted to an individual for a term of years the exclusive right and privilege of constructing wharves at any points within the corporate limits of the town and the right to collect wharfage, etc., and also sold and conveyed in fee to the same person the lands granted to it by the state, "with the right to erect wharves, piers, docks and buildings at any and all points thereon, not obstructing navigation." Held, that such conveyance could not be construed to carry with it the exclusive right in perpetuity of constructing wharves on the water front of the town, which was vested in the town by the act of incorporation, and in aid of which the grant of lands was made, but that such right was limited to the term expressly granted: nor did such conveyance vest the grantee with any right to wharf out beyond the boundaries of the lands granted.

5. ADVERSE POSSESSION-NATURE OF POSSESSION-INCLOSURE.

A tract of tide land, bounded on one side by the shore along which run railroad tracks owned by the owner of the tract and lying between a training wall built by the United States for the improvement of navigation, and a mole built out to deep water in a bay for the passage of railroad trains, with the fourth side open to the bay, is not "inclosed," within the meaning of Code Civ. Proc. Cal. § 323, so as to be deemed in the actual possession and occupancy of the owner under said section.

[Ed. Note. For cases in point, sée Cent. Dig. vol. 1, Adverse Possession, §§ 99-105.]

6. NAVIGABLE WATERS-LITTORAL RIGHTS-CALIFORNIA STATUTES.

Civ. Code Cal. § 1014, which provides that, "where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank," covers the whole subject of the right to alluvion in the state, and confines it to that which results from natural causes, and to that which forms on the bank of a river or stream, and gives no right to accretion by, alluvion to the owner of tide lands lying on the Bay of San Francisco.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 266-282.]

7. CONSTITUTIONAL LAW-VESTED RIGHTS.

One who acquires title to tide lands from the state obtains no vested right to possible future accretion thereto which cannot be cut off by subsequent legislation.

[Ed. Note:-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 183.]

8. SAME TIDE LANDS-CONSTRUCTION OF GRANT..

A grant by the state of California to the town of Oakland of tide lands, expressly limited to lands within the boundary of the town, which on the water front was fixed at the line of low tide, established a permanent boundary of such lands at that line, and such boundary cannot be extended beyond it into the waters of the bay outside of the corporate limits of the town by accretions.

Appeal from the Circuit Court of the United States for the Northern District of California.

For opinion below, sec 144 Fed. 160.

The appellant, the Western Pacific Railway Company, a corporation created under the laws of California, engaged in the construction of a railway from Salt Lake City, in the state of Utah, to San Francisco, by way of Oakland, with a barge and ferry system from the city of Oakland across the bay to San Francisco, was, on and before January 10, 1906, in the possession of a certain

tract of made land on the north side of and adjacent to the north jetty or training wall, which is the northerly confine of the Oakland channel or San Antonio creek at its mouth in the bay of San Francisco at the water front of the city of Oakland. The tract so occupied extends along said north training wall both east and west of a certain imaginary line which was established by the government of the United States in 1893, known as the "United States Bulkhead Line." At the eastern extremity of the tract there is a bend in the

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north jetty. The northern boundary of the eastern portion of the tract runs parallel with the north jetty, and about 600 feet distant therefrom. Proceeding westward, the tract gradually widens to a point northwesterly of the westeru extremity of the north jetty, where it is 1,000 feet in width. The western end of the tract is inclosed by a bulkhead which extends north from the north jetty about 1,000 feet, and thence easterly for about 500 feet. The whole tract is about 1.4 miles in length. It all lies in San Francisco Bay below the ordinary low-tide line of the year 1852.

On January 10, 1906, the appellee herein, the Southern Pacific Company, filed in the court below its bill in equity against the appellant, alleging its ownership in fee of all that part of the above-described tract of land lying east of the United States bulkhead line, and claiming the exclusive right of access to navigable water over the residue of the tract. The prayer for relief was that the appellant, and others named in the bill as defendants, be enjoined and restrained from occupying any part of the said tract of land, and from maintaining any railroad tracks thereon or erecting any wharves, piers, or construction of any kind thereon, and from depositing mud or material thereon

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