Abraham Clark Freeman.

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lawful right upon the ballot, it renders it void.

The case diflEers from Rutledge v. Crawford, 91 Cal. 526, 25
Am. St. Rep. 212, where this court held that the impression (of
printer's ink) upon the back of the ballot was as attributable to
accident as design. Here the writing of the letter was an afi&rm-
ative act of the voter. He had his remedy, having improperly
marked his ballot, by calling for the issuance to him of a fresh
ticket: Pol. Code, sec. 1207.

4. The account of the election at Lake precinct is a breeze from
Arcady. The polls should have opened at 6:31, A. M. Smith
received thirteen votes in this precinct, Tebbe twenty. William
Otey, called for contestant, testified: "On November 6th last I
was at the *** polls of Lake election precinct on the Fairchild
ranch I got there between 8 and 9 o'clock in the morn-
ing. Served on the election board in my father's place. When
I got there Fairchild, Henry Scale, and the hands working on the
ranch were there. I do not remember anyone else. The polls
were opened, I should judge, some time near 10 o'clock. We took
an adjournment when we went to dinner. Took the ballot-box
with us. Fairchild, the old gentleman, carried it; he was one of

the election officers The other materials, ballots and

everything, we left in the poll-room when we went to dinner. We

* left the ballot-box on the table while eating dinner — on same
table. That ballot-box did not pass into the hands of other per-
sons. I think there were bystanders around the polls pt the time

we went to dinner The bouse is about a hundred yards

from the polling-place. Between the house and schoolhouse
there were some men. Some had voted, and some were working
on the ranch. I think some other people took dinner with the

Digitized by


74 T£BB£ V. Smith. [CaL

board. When we were through Fairchild carried the box back.
No person was deprived of voting because the polls ^ere not
opened earlier. I know that no one came there without voting
that was entitled to vote."

The law provides that the polls must open at sunrise, and be
kept open until 5 P. M., and that the ballot-box must not be
removed from the polling-place or presence of the bystanders:
Pol. Code, sees, 1160, 1162.

It is the rule that mandatory provisions for the holding of an
election must be followed, or the failure will vitiate it, while the
departure from the terras of a directory provision will not render
it void, in the absence of a further showing that the result of the
election has been changed or the rights of the voters injuriously
aflfected thereby: Code Civ. Proc, sec. 1112; Bussell v. Mc-
Dowell, 83 Cal. 70. But the rule as to directory provisions ap-
plies only to minor and unsubstantial departures therefrom.
There may be such radical omissions and failures to comply with
the essential terms of a directory ^** provision as will lead to the
conclusive presumption that the injury must have followed. A
substantial compliance with the terms of directory provisions is,
after all, required. And such a substantial compliance is not
had by strictly following some provisions, while essentially fail-
ing to observe others. There must be a reasonable observance
of all the prescribed conditions.

It is the duty of the courts so far to adhere to the substantial
requirements of the law in regard to elections as to preserve them
from abuses subversive of the rights of the electors. And under
this view the question becomes a broader one than can be dis-
posed of by answering that in the individual case no harm result-
ed. Thus, in Kiowles v. Yates, 31 Cal. 82, the contention of
appellants was that, admitting that there was no fraud, and that
the votes were cast by qualified electors, still the fact that in cer-
tain precincts the polls were opened, without reason, at long dis-
tances from the appointed places, was enough in itself to call for
the rejection of the votes, and this court so held. Likewise, in
the case of People v- Scale, 52 Cal. 71, where no question of
fraud or injury was involved, but where at an election, called for
voting a school tax, the polls were opened at 1 o'clock P. M., and
closed at 6, instead of being opened at one hour after sunrise,
and kept open until sunset, as the law then required, this court,
without hesitation, declared the election invalid.

In this case we are quite willing to believe that the miscon-

Digitized by


July, 1895.] Tebbe v. Smith. 76

duct of the officers of Lake precinct was prompted by nothing
vrorse than ignorance and lack of appreciation of the responsi-
bilities of their positions, and we may say further, for snch is the
evidence, that no harm is shown to have resulted from their
conduct; but, looking to the purity of elections and integrity of
the ballot-box, we are constrained to hold that conduct like this
amounts in itself to such a failure to observe the substantial
requirements of the law as must invalidate the election. And,
while reluctant so to hold in this instance, we are confirmed in
the opinion by consideration *** of the fact that any other
interpretation would add grave perils to the safe conduct of our
elections which are already harassed by dangers enough. The
votes of Iiake precinct should, therefore, have been rejected.

5. Upon all the ballots cast in Cedlville precinct there ap-
peared the following, written in the blank space under the office

of justice of the peace: "G. G. Brown Eepublican.*' The

evidence discloses that this writing was all done by the same per-
son, and, further, that there was but one person in the precinct
lawfully assisted in the making of his ballot under the provisions
of the code: Pol. Code, sec. 1208. The record, unfortunately,
does not disclose who did the writing, nor whether it was upon
the tickets when they were put into the voters' hands. Left,
then, to the presumption of the performance of duty by public
officers, it must be held that the officers put legal tickets into
the hands of the electors, and that the writing was afterward
put upon them. But an elector unable to write can, under
our present laws, have a name inscribed upon his ballot in only
one legal way, and that is by pursuing the method prescribed
by section 1208 of the Political Code. This requirement is
clearly mandatory, since it is further declared that ''any ballot
which is not made as provided in this act shall be void, and shall
not be counted": Pol. Code, sec. 1211. In Attorney General
V. May, 99 Mich. 538, the supreme court of Michigan, con-
struing a similar statute, held that inspectors of election had
no right to assist in the marking of ballots, except in the man-
ner provided by law, and that ballots marked in any other than
the prescribed manner were void. In the present state of the
evidence only the ballot of the voter lawfully assisted should be
counted. It must be held, therefore, that the other ballots of
Cecilville precinct should not have been counted. "What is heie
said is addressed to the evidence as it appears in the record. It
may be that upon a new trial additional evidence will remove the
objections now found.

Digitized by


76 Freeman v. Bellegakdk. [CaL

The other points do not require consideration. They ***
are either covered by what has been said, or do not involve error.
But for the foregoing reasons the judgment is reversed and the
cause remanded.

Temple, J., Van Fleet, J., Harrison, J., McFarland, J., and
Garoutte, J., concurred.

ELECTIONS— BALLOTS AS EVIDENCE.— An election is for the
purpose of ascertainin*: the will of the electors, and it is well settled
that in an election contest the ballots themselves, if they are actoally
preserved, constitute the highest and best evidence of the will of the
electors: E^ztended note to Hartman v. Youns, 11 Am. St. Bep. 798;
also the notes to Brown v. McCollam, 14 Am. St. Bep, 234« and Kreits
V. Behrensmeyer, 8 Am. St. Bep. 377.

ITY OF.— In an action to contest the right to an office, the burden
of proof is on the plaintiff when he seeks to introduce the ballots to
overturn the official oount, to show affirmativelj that the ballots have
not been tampered with, and that thev are the identical ballots cast by
the voters: Fencon v. Scott, 17 Or. 189; 11 Am. St. Bep. 801, and note.
See, also, the extended note to Hartman v. Young, 11 Am. St. Bep.
798, and the notes to Boyer v. Tcague, 19 Am. St. Kep. 667, and Kreits
V. Behrensmeyer, 8 Am. St. Bep. 378.

will invalidate ballots under the Australian ballot law is the subject of
the monographic note to Taylor v. Bleakley, post, p. 283.

ing to limit a citisen in the exercise of his right to vote should be liber*
ally construed in his favor: State v. Saxon, 30 Fla. 668; 82 Am. St.
Bep. 46; Bowers v. Smith, 111 Mo. 45; 33 Am. St Bep. 491, and note.

Fbeeman V. Bbllegardb.

[lOS ClLirOBNTA, 179.]

ASCENDING SUCH CREEK, giving a large number of courses and
distances, and then as crossing the creek, the thread of the stream is
the boundary, and the calls for courses and distances must be disre-
garded, if they do not follow such thread.

in which a tidal stream is included makes a grant of Innd, describing
the boundary as ascending the stream, such boundary extends to the
thread of the stream.

the owner ntust receive the same construction as the grant by bim of
any other riparian lands.

surveyor, and the giving of the courses and distances of snch meanders
in a conveyance, do not prevent the title of the grantee from extend-
ing to the thread of the stream.

Digitized by


JdI79 1895.] Frbeman 9. Bbllbgardb. 77

WBfeyance, after mentioning aeYeral ooaraea and diotanoea in aaoend*
ing a creek, the line la described as ciosaing the creek, doea not abow
that the tme boundary ia at the aide or bank of the atream nor elae-
where than in the thread thereof.

BOUNDARIES.— THE TERM «« SHORE'' ordinarily indieatea
lands periodically covered and uncovered by the tide, but ia aometimea
applied to a river or pond as aynonymoua with " bank."

BOUNDARY, SHORE AS A.— In the abaenoe of any qnaliflca-
tk», a grant bounded by the ahore of a river or other atream, when
the gnrntor ia the owner of the bed thereof, conveya the land to the
lovest point of the ahore at any time, in order that the grantee
may at all timea have acoesa to the atream. If^ in the conveyance,
any point ia designated as being on the shore, this shows what point
the partiea understood to be designated by that term, and the bound-
ary maat be run accordingly, though to do ao reqnirea the diaregarding
of specified courses and distancea.

Warren OIney, Harding ft Forbes, William Grant, 0. S. Cnali-
ing, and Charles F. Hanlon^ for the appellants.

Freeman ft Bates, for the respondents.

*^ HAEEISON, J. Action to quiet title to certain landa
in San Francisco. The lands described in the complaint are a
portion of the Bemal rancho, and the controverted question in
the action is the title of the plaintiffs to that portion of the
lands described in the complaint which lies between the south
shore of Islais creek and the thread of the stream. Islais creek
empties into the bay of San Francisco, and the tidal waters of
the bay ebb and flow in the creek for some distance above its
mouth. At the line of the land claimed by the plaintiff nearest
the bay the creek is, at ordinary high tides, three hundred feet
wide, and the ground at that point that is covered and uncovered
by the ebb and flow of the tides has a width of one hundred and
fi% feet between the bank of the stream and the line of ordinary
low-water mark. At high tide the water nearest the bay is about
three feet deep, and at a point below the lands in controversy
there is at low tide no water in the creek, thus rendering the creek
a mere basin which is filled and emptied by the ebb and flow of
the tide. The patent for the Bemal ranch covers the bed of
Islais creek and the land on both banks thereof, and includes all
the lands described in the complaint. The title of the plaintiffs
to the land in controversy is derived through the foreclosure of
a mortgage given by the Bemals to J. Mora Moss, and a subse-
quent conveyance from the grantees under the Moss foreclosure
to John Hewston, and depends upon the construction to be
giten to the description in the mortgage and sheriff's deed there-
under *•* and to the description in the conveyance from Moss*
grantees to Hewaton. The plaintiff had judgment in the court

Digitized by


78 Freeman v. Bellegarde. [CaL

below, and defendants have appealed therefrom and from an^
order denying a new trial.

1. The description of the property in the mortgage to Moss,.
80 far as the same affects the present action, is as follows:
'^Thence along margin of the bay (giving four courses and dis«
tances) .... 11 chains to mouth of creek; thence ascending said
creek (giving thirteen courses, with their distances) . . . . N. 45*"
W. 9 chains 50 links, crossing the creek to the end ol the old wall
on N. side of marsh .... containing area of 1958 acres, mon* or
less, according to a survey by N". Soholfield, deputy U. S. survevor
general.'* This description in the mortgage was carried into
the sheriff's deed issued upon the sale under the foreclosure, and
the title to the land thus conveyed afterward became vested in
Pioche and Eobinson.

In Spring v. Hewston, 52 Cal. 442, the description in this
mortgage was before the court, and it was held thnt the creek,
rather than the line determined by the courses and distances, was
the true boundary of the land embraced in the mortgage. The
call in the mortgage "to mouth of creek'' rendered the thread of
the creek the boundary of the land mortgaged. In the absence
of any qualifying term the designation in a conveyance of any
physical object or monument as a boundary implies the
middle or central point of such boundary; as, for example, if
the boundary be a road or highway, or a stream, the thread of the
road or stream will be intended; if a rock, a heap of stones, or a
tree be the boundary, the central point of such tree or rock or
heap of stones will be intended. A private grant is to be inter-
preted in favor of the grantee, and, if the grantor is the owner of
the monument or boundary designated in his grant, his con-
yeyance will be held to extend to the middle line or central point
of such monument or boundary. This rule is not changed by
reason of the fact that a stream which is designated as the
boundary is a tidal stream, *^* if the grantor of the land is the
owner of the bed of such stream. "When riparian estates are
conveyed the owner may reserve the land under water, but the
general presumption is that the purchaser's title extends as far
as the grantor owns, in both tidal and fresh waters": Oould oft
Waters, sec. 195. The title to the beds of tidal streams is ordi-
narily vested in the sovereign, and in such case a grant from the
sovereign which is bounded by tidal waters will be construed Uh
extend only to high-water mark: Long Beach Land etc. Co. t.
Bichardson, 70 Cal. 206. A grant from the sovereign is to be
interpreted in favor of the grantor^ contrary to the role for-

Digitized by


Joljy 1895.] Fbeeman v, Bellegardk. * 79

interpreting grants between private individuals; bnt if ^ as in the
present case, the sovereign has parted with the title to the land
beneath the stream^ a grant of the riparian tidal lands by the
owner must receive the same construction as a grant by him of
any other riparian lands. It is unnecessary to determine
whether the provisions of section. 880 of the Civil Code, and of
section 2077 of the Code of Civil Procedure, were intended to
change the rules of construction then existing, inasmuch as the
mortgage to Moss, and the conveyances by which the lands in
question became vested in Pioche and Eobinson, were executed
prior to the enactment of the codes.

The further call in the mortgage and subsequent conveyances,
"thence ascending said creek," must prevail over the courses and
distances. The creek is the boundary of the land conveyed, and
the courses and distances, being only approximate estimates of
the direction and lenprth of the boundary, must jrield to the actual
line of the creek. When a meandering stream is a boundary it is
impracticable for a surveyor to fix monuments in the channel of the
water, or to define the actual line of its windings and courses;
and in attempting to define its banks it would be impossible for
two surveyors to give the courses and lengths of its several
meanders alike: Yates v. Van de Bogert, 56 N. T. 526; Angell on
Watercourses, sees. 29, 30; Middleton v. *®* Pritcliard, 3 ScauL
610; 38 Am. Dec. 112; Railroad Co. v. Schurmeir, 7 Wall. 272.

This construction is not overcome by the fact that, after
''ascending the creek'' for several courses, the next course is
given as ^^crossing the creek to the end of the old wall.** This
call is not inconsistent with holding that the previous call, ^^as-
cending the creek,** follows the thread of the stream, but merely
shows that in going from that point the next course is in a
direction which crosses the creek from the thread of the stream
toward the end of the wall. Nor is the construction to be given
to these calls in the mortgage qualified by the subsequent refer-
ence therein to a survey by Scholfield. The defendants oflFered
in evidence a plat of a survey made by Scholfield and approved
by the United States surveyor general September 23, 1853, and
it was testified that this was a preliminary survey of the Bemal
rancho, made under instructions from the land commission. A
comparison of this plat with the description in the mortgage
shows, however, that this cannot have been the survey referred
to in the mortgage. The plat is of the entire rancho, containing
four thousand three hundred and forty-one acres, and has upon
its face several subdivisions, no one of whicl^ corresponds with

Digitized by


80 Fbbbman v. Bbllbgabdb. [CaL

the tract of nineteen hundred and fifty-eight acres which ii de-
scribed in the mortgage. The plat, however, contains upwards
of a hundred courses — ^more than double the number in the
mortgage — ^and only eleven of these courses are the same as
those in the mortgage.

2. Pioche and Eobinson conveyed, December 6, 1866, to
John Hewston a tract of land, ^^commencing at the intersection
of a ditch (dividing land belonging to Haley and O'Neill) with
the shore line, and running thence along said ditch • • • to E.
line of 15th avenue; thence along the easterly line of said 15th
avenue N. 45* 15' W. 2 chains 60 links, to S. shore of Isjais creek;
thence along said shore as it winds and turns to commencement."
Whatever title passed by this deed was vested in the plaintiffs at
the conmiencement of the action. By virtue ^®^ of convey-
ances subsequently executed by Pioche and Robinson the de-
fendants Luty and Thomas claimed title to the land, "com-
mencing at a point where the northwesterly line of Fourth
avenue intersects the southerly shore of Islais creek, and
running thence in a northwesterly direction along the north-
easterly line of said Fourth avenue, extended to the center of
Islais creek, and thence ascending said Islais creek along
the center line thereof to the northeasterly Une of Fif-
teenth avenue, if extended in a northwesterly direction, as
said avenue is delineated on said map; and thence in a
southeasterly direction, and along the northeasterly line of Fif-
teenth avenue, if extended as aforesaid to the southerly shore of
Islais creek; and thence in a northeasterly direction along said
southerly shore as it winds and turns to the point of commence-
ment/* With reference to their title to this land the court finds,
"That the lands described in the conveyance to Hewston include
all the property described in plaintiffs' complaint, unless sucA
deed is to be construed as including no part of the lands covered
by the waters of Islais creek, in which event the said deed includes
all the lands described in plaintiffs* complaint, except that lying
in Islais creek"; and, "if Pioche and Robinson retained any title
to any part of the lands described in plaintiffs* complaint, after
the making of the conveyances hereinbefore set out, then such
title thereafter and prior to the commencement of this action be-
came vested in the defendants Thomas and Luty as to the lands
described in their answer.** The conclusion of law that **the
plaintiffs are the owners of all the real property described in
their complaint** must be regarded as a finding that Pioche and
Robinson did not retain any title to any portion of. the lands de-

Digitized by


Jnly, 1895.J Fkeeman v. Bellegardb. 81

Bcribed in the complaint. The terra "shore" in its ordinary use,
dgnifies the land that is periodically covered and uncovered by
the tide^ but it is sometimes applied to a river or pond bb
synonymous with *T)ank." In the absence of any qualification
a grant bounded by the "shore" of a river, *^ when the grantor
is the owner of the river, conveys the land up to the lowest point
of the shore at any time, in order that the grantee may at all
times have access to the stream by which the land is bounded.
It is competent, however, for the grantor to so designate th^ Una
on the shore which shall constitute the boundary, that there
shall be no uncertainty in its location, and in such case the line
of high or low water mark would be immaterial in determining
the extent of the grant In the present case the starting point
of the description in the grant to Hewston is "the intersection of
the ditch with the shore line." This starting point may be sus-
ceptible of exact location, and from some of the evidence offered
at the trial it would appear capable of ascertainment, although the
court does not find its location. The only land to which plain-
tiffs have title is that embraced within a line drawn from this
starting point around the various courses to the "south shore of
Islais creek," and "thence along said shore as it winds and turns
to commencement." The point in the "south shore," from
which the last course is to be drawn, must be the same point in
the shore as is the starting point; that is, at whatever point be-
tween high and low water mark was the intersection of the ditch
with the shore line, there must be the point in the "shore line" to
which the course along the easterly line of Fifteenth avenue is to
be extended. The term "shore" must be construed with the
same meaning wherever it is used in the same conveyance, and its
definite location in the first course requires the same location in
the last This is a fixed boundary or monument to which the
distance "two chains sixty links" must yield. Whatever land
lies between this boimdary and the center of the creek is vested
in the defendants Thomas and Luty, and the finding of the court
that the plaintiffs were the owners of this portion of the de-
manded premises was erroneous.

3. The defendants other than Thomas and Luty claim title
under Harvey S. Brown to certain lots in gift map *®® number
4, upon the theory that the Moss mortgage did not include any
part of the bed of Islais creek. As Brown had conveyed to Moss
all the lands described in the mortgage before he made the con-
veyance under which these defendants claim, it is evident that
the plaintiffs' title derived from Moes is superior to theirs.

AM. 9r. BSP.,Voi. XLIX.— 6

Digitized by


84 Cardenas v. Miller. [CaL

for which the building in question was constructed, but it ii not
at all apparent that they are necessary to the convenient use and
occupation of the building for the purposes indicated. Their
uses are foreign to its purposes, except as they may tend to bring
custom to its doors." And here it may be said the use of this
land is foreign to the owner's purposes, except that it may furnish
him an income by which he may sustain himself in the dwelling.
The statute simply allows him the dwelling-house and a quantity
of land around it sufficient for its convenient use. As to his in-

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