Temple, J., delivered tbe opinion of tbe .Court; Rhodes, C. J., and Crookett, J., concurring:
Tbe plaintiff avers tbatformore than eighteen years be has bad possession, under tbe possessory laws of this State, of a tract of land in tbe county of Tolo, adjoining tbe Sacramento River, and including tbe village of Washington, opposite tbe city of Sacramento. That in November, 1868, tbe defendant, beingCounty Surveyor, was employed to survey tbe tract, with a view of purchasing it from tbe State as swamp and overflowed land. That tbe defendant made tbe survey, extend*472ing as tbe plaintiff supposed, to tbe river; but in February, 1869, wben be obtained tbe patent of tbe State, be discovered tbat tbe defendant in mating tbe survey, bad fraudulently omitted to call for tbe river as one of tbe boundaries of bis tract, but run tbe eastern boundary along tbe levee on tbe river bank, and then made out a pretended survey for bimself, wbicb be dated two days before tbe survey made for plaintiff. Tbat tbis survey was never, in fact, made, but was made up from tbe field-notes of tbe survey made for plaintiff; and tbat tbe river was fraudulently omitted from tbe calls of plaintiff's survey, in order tbat defendant might get title to a tract of land, wbicb was really in tbe bed of tbe Sacramento river, including tbe sloping bank. Tbat be bas secured a certificate of purchase, and, unless restrained, will procure a patent and greatly injure tbe plaintiff, interfering with bis right to tbe water-front, etc. Plaintiff asks tbat defendant be compelled to assign to him bis certificate of purchase; tbat bebe restrained from receiving a patent, and for other relief. Tbe defendant denied all of these charges wbicb tend to show fraud, and avers tbat be made tbe survey for bimself, and filed in tbe State Land Office bis application to purchase tbe land surveyed for bimself two days before be was employed by tbe plaintiff to survey bis tract.
Written findings were filed, but no express finding was made upon tbe question of fraud, upon wbicb tbe right of. tbe plaintiff to tbe relief demanded chiefly depends. Tbe Court probably refused to make an express finding upon tbis point, for tbe reason tbat it did find certain facts, wbicb in tbe opinion of tbe Court, rendered tbe question of fraud entirely immaterial.
It found tbat tbe land in controversy is below high-water mark, and tbat tbe tide ebbs and flows over it; and, as a conclusion of law, tbat neither party could purchase tbe land' as swamp and overflowed land. Tbe certificate of purchase obtained by defendant was therefore void, and bis patent, if be obtained one, would also be void, and no1 *473injury conlcl result to plaintiff from defendant's claim. Plaintiff's bill was therefore dismissed.
Upon the facts found in this case there can be no doubt that the certificate of purchase was improperly issued to the defendant; and if those findings are true, it is