The evidence of Bursell as to his interview with Forest Supervisor White in charge of the Sierra Forest Reserve, just after White ordered the work stopped because no permit had been obtained from the government, in which White told him substantially that he could not proceed therewith without such a permit, was probably immaterial, in view of our conclusion that the claimant was fully protected by section 1422, Civ. Code, but its effect certainly was not prejudicial to plaintiff. The agreement between Bursell and Henley on the one hand and defendant corporation on the other was relevant and material to show the acquisition by said defendant of the right initiated by the Bursell notice.

or of such nature as to take the benefit of transmitting the application of plaintiff for the new section, the particular point being a permit to do his contemplated work to the that it was not "shown" therein that the proper officer at Washington, D. C. The letplace of intended diversion or any part of ter is not in the record, and we certainly the route of intended conveyance of water cannot say that it was in any way material, claimed thereby was "within, and a part of" or constituted competent evidence in this the Sierra Forest Reserve. As was substan- cause. The application itself and the subtially said by the learned trial judge, if the sequent order granting the permit to plainwords "shown in the notice" be construed tiff were introduced in evidence. as meaning expressly stated in so many words in the notice, it must be conceded that both the Bursell notice and plaintiff's notice are insufficient to bring the claimants thereunder within the provisions of section 1422, Civ. Code, for neither notice so states in express terms. But we are satisfied that no such construction should be given to the language in question. It was no part of the design of section 1422, Civ. Code, to change the rule as to the form of notice of appropriation. That was a matter wholly covered by section 1415, Civ. Code, which, so far as the form of notice is concerned, has not been changed since its adoption in 1872. The sole object of section 1422 was to protect claimants who were unable to proceed with the work necessary to perfect their claims by reason of the fact that the place of intended diversion or a part of the route of intended conveyance was within and a part of some national forest reservation, etc., pending the procurement with due diligence of the essential authority from the United States government, and the provision that this fact should be "shown" in the notice was evidently inserted simply for the purpose of requiring the notice itself to furnish evidence of the fact, and of holding the claimant to a specific point of diversion within and a part of, or a specified route of intended conveyance wholly or partly within and a part of, a forest reservation, etc. Clearly it would appear to answer any possible object of the provision that the notice should give such a description as will, with those matters of which courts take judicial notice, definitely locate the proposed point of diversion or the whole or some part of the proposed route of conveyance as being within and a part of a forest or other public reservation. And this, we think, is all the language of the section calls for. It will be observed that the requirement is not that the notice must "state" that any such point is within or a part of a reservation, but simply that such fact must be "shown in the notice," and we are satisfied that it should be held to be so "shown" when the facts stated therein are sufficient to enable a court to declare thereon that it is so located and is a part of the reservation.

We cannot see that certain questions ask. ed Bursell on cross-examination as to the posting of other notices of appropriation prior to September 26, 1902, constituted proper cross-examination, and are of the opinion that the objections that the same were not proper cross-examination were properly sustained. It appears, however, that subsequent to the ruling complained of plaintiff cross-examined Bursell quite fully upon the matter of prior postings. What we have said is equally applicable to certain rulings on the cross-examination of Mr. Henley, Bursell's associate. Bursell, having testified upon cross-examination that he had no interest whatever in the defendant or in this action, was asked what he received at the time he disposed of his interest under the agreement with defendant corporation. An objection was sustained. The witness then testified that he had already received all that he was to receive, had been paid in full, and was not to receive any power or use of power from defendant corporation or any of the other defendants. We think the evidence thus given covered the question of pecuniary interest of the witness in the result of the action as fully as plaintiff could reasonably ask.

Two letters, one from Forest Supervisor White to the Commissioner of the General Land Office, dated April 23, 1903, and one from the acting commissioner to Forest Su│pervisor White, dated May 8, 1903, were introduced in evidence for the purpose of showing that the stopping of the work by the forest supervisor until a permit was obtained had the sanction and approval of the land department of the government. AssumOn the objection of defendant, the courting this evidence to be immaterial in view excluded a letter forwarded by the register of our conclusion as to the effect of section

What we have said practically disposes of all the claims of plaintiff except certain alleged errors in the matter of the admission and exclusion of testimony.

be held to have been harmless. This ap-six months after entry, an appeal from an order pears to be practically conceded by learned denying a new trial is valid where the notice of counsel for plaintiff. appeal is filed 61 days after the rendition and entry of the order, where the record does not show the service of notice of entry.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1900-1904; Dec. Dig. 348.*]

An objection that the proposed testimony is "irrelevant, immaterial, not competent or legal evidence" was made to various records of the local land office, the land department, and the interior and agricultural depart- 4. APPEAL and Error (§ 505*)—TIME TO APPEAL STATUTES-RECORD. ments, in the matter of the application for a The purpose of notice of entry of order or permit to do the proposed work by defend- judgment within Code Civ. Proc. 941b, allowant corporation and the opposition of plain-ing an appeal from a judgment or order within tiff thereto, and was overruled. These rec-of, is to limit the time to appeal, and, though a specified time after notice of the entry thereords included opinions and decisions of the the statute does not direct that the notice shall various officers upon questions presented in be filed, it should be filed, and when notice is the proceeding. We are satisfied that the given, appellant may make the transcript show whole record in the matter of the applica- admission of service, and a certificate of the filjurisdiction by inserting a copy of it with the tion of defendant corporation for a permit ing where it is on file, and where no notice is givfrom the government was admissible, not en, and the appeal is taken more than 60 days only to show the fact of such application after the entry, appellant can prove that his apand its determination, but also upon the peal is timely only by filing with the transcript an affidavit that no notice of entry has been question of the diligence of such defendant served. in making and prosecuting the same, and the resumption of its work within the requisite time after the determination thereof and the issuance of a permit.

We do not see how the evidence of the president of defendant corporation to the effect that it is the intention of such defendant to expend some $250,000 in the installation of a power plant was material or relevant, but we cannot conceive that it may have operated to the prejudice of plaintiff. There is no other matter requiring notice. The judgment and order denying a new trial are affirmed.

We concur: SHAW, J; SLOSS, J.

(158 Cal. 119)

FOSS V. JOHNSTONE. (L. A. 2,558.) (Supreme Court of California. July 15, 1910. Rehearing Denied Aug. 14, 1910.)

1. APPEAL AND ERROR (§ 937*)-TIME TO APPEAL-RECORD-PRESUMPTIONS.

Where the record on appeal from a judg

ment does not show the exact date of its entry, the presumption is that it was entered before the judgment roll was made up within Code Civ. Proc. § 939, allowing appeals from a final judgment within six months thereof.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. 8 937.*]

2. APPEAL AND ERROR (8 422*)-NOTICE OF APPEAL-DEFECTS.

A mistake in the notice of appeal as to the date of the order or judgment appealed from does not invalidate the appeal where there is a description of the order or judgment in other parts of the notice reasonably sufficient to identify it.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2149; Dec. Dig. § 422.*] 3. APPEAL AND ERROR (§ 348*)-TIME TO APPEAL STATUTES-RECORD.

Under Code Civ. Proc. § 941b, allowing an appeal from a judgment or order at any time after the rendition thereof, provided it is within 60 days after service of the notice of entry thereof, or where no notice is given then within

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 505.*]

5. APPEAL AND ERROR (§ 505*)-TIME TO APPEAL JURISDICTION.

or judgment taken after 60 days from the entry Jurisdiction of an appeal from an order and within six months of the entry depends on matters not required to be of record under Code Civ. Proc. § 941b, allowing an appeal within notice is given within six months after entry, 60 days after notice of entry, and where no and respondent desiring to raise the question of jurisdiction should support his claim by affidavit, or other evidence showing service of the required notice of entry and the date of such service.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 505.*]

6. JUDGMENT (§ 270*)—"ENTRY OF JUDGMENT" -RECORD.

The entry of a judgment is a matter of record, and it is the act which makes the judgment a record.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. § 270.*

For other definitions, see Words and Phrases, vol. 3, pp. 2400-2408.]

7. WATERS AND WATER COURSES (§ 111*)

PONDS

RIGHT TO BED - PATENTS -CON

STRUCTION.

of property granted by the federal government The incidents attaching to the ownership are to be determined by the states, and, as an parian owner on nontidal water will be limitincident of such ownership, the right of a ried according to the law of the state, either to high or low water mark, or to the middle of the stream.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 111;* Boundaries, Cent. Dig. §§ 114-122.]

8. WATERS AND WATER COURSES (§ 111*) PATENTS-CONSTRUCTION-ANY OTHER WA

TER.

of "any other water" in Civ. Code, § 830, proA nonnavigable pond is within the class viding that, except where a grant under which land is held indicates a different intent, the owner of upland bordering on tidewater takes to ordinary high-water mark, and bordering on a nontidal navigable lake or stream to lowwater mark, and bordering on any other water to the middle of the lake or stream, so that, unless a different intent appears from a patent

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No, Series & Rep'r Indexes

FOSS v. JOHNSTONE.

of land bordering on a nonnavigable pond, the patentee takes to its center.

[Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 111.*]

9. PUBLIC LANDS (§ 114*) - PATENTS-CON

STRUCTION.

A reference in a patent by the federal government to the official plat and survey makes the plat and the field notes of the survey a part of the description of the land as if they were incorporated in the patent.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 314-322; Dec. Dig. § 114.*] 10. WATERS AND WATER COURSES (§ 111*) PATENTS.

A federal government patent to land bordering on a nonnavigable pond, which expressly declares that it grants lots mentioned, and that they contain a stated number of acres which is the same number of acres mentioned in the plat referred to in the patent, does not show an intent to only grant the stated number of acres and to make the meander line the boundary, since it is the practice of the government in disposing of the public lands to measure the price to be paid by the quantity of upland granted without making any charge for the land un

der water.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 111;* Boundaries, Cent. Dig. §§ 114-122.]

11. COURTS (§ 97*) — DECISIONS OF FEDERAL SUPREME COURT-CONCLUSIVENESS.

A decision of the federal Supreme Court on a federal question is controlling on the state courts.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 329-334; Dec. Dig. § 97.*] 12. PUBLIC LANDS (§ 58*)-SWAMP LANDSGRANT BY FEDERAL GOVERNMENT-EFFECT. The swamp land act (Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519) is a present grant to the state of all the swamp and overflowed lands then belonging to the United States situated within the state, and the title of the state does not depend on the actual issuance to it of a patent therefor, as directed in the act.

[Ed. Note. For other cases, see Public Lands,

Cent. Dig. §§ 180-191; Dec. Dig. § 58.*]
13. PUBLIC LANDS (§ 116*)—PATENTS-SWAMP
LANDS-GRANT BY FEDERAL GOVERNMENT-
EFFECT.

The office of a patent of swamp and overflowed lands granted to the state by the swamp land act of 1850 (Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519) is to make the description of the lands definite and conclusive as between the United States and the state, for identification is necessary to determine whether any particular tract comes within the general description of swamp and overflowed land so as to pass by the grant.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 323-328; Dec. Dig. § 116.*] 14. WATERS ANd Water CouRSES (§ 111*)—TITLE ACQUIRED.

295

swamp and overflowed lands granted to the state, and requiring the Surveyor General of the United States to examine the segregation maps and surveys of the swamp and overflowed vious rules and methods of identifying swamp lands made by the state, etc., supersede all preship plat approved by the United States Surlands, and land represented on an official townauthorities, as land covered by the waters of a veyor General, and acquiesced in by the state permanent pond, so as to belong to the United swamp land; and an applicant to purchase the States, is a determination that the land is not land from the state under St. 1893, c. 229, as land covered by the recession of inland lakes, acquires no title as against a prior patentee from the federal government of the land bordering on the pond, since the survey made in pursuance of the applicant's application is not a segregation map within the prescribed method of identifying swamp lands.

Cent. Dig. §§ 186, 187; Dec. Dig. § 60.*]
[Ed. Note.-For other cases, see Public Lands,
16. EVIDENCE (§ 23*)-JUDICIAL NOTICE.

Under Code Civ. Proc. § 1875, subd. 3, re-
quiring the court to take judicial notice of the
public acts of the executive department of the
state and the United States, the court must take
judicial notice of proceedings of the executive
officers of the state and of the United States in
identifying swamp lands granted to the state by
84, 9 Stat. 519).
the act of 1850 (Act Cong. Sept. 28, 1850, c.

Cent. Dig.. § 29, 30; Dec. Dig. § 23.*]
[Ed. Note.-For other cases, see Evidence,

17. PUBLIC LANDS (§ 106*)-SWAMP LANDS-
DECISION OF FEDERAL AUTHORITIES-CON-
CLUSIVENESS.

Where land has been identified by the federal authorities intrusted with that duty, as land which did not pass to the state under the act of 1850 (Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519), granting swamp lands to the state, parol evidence is not admissible to prove that the land was in fact swamp land in 1850, so that, by virtue of the grant, it became the property of the state.

Cent. Dig. 88 301, 302; Dec. Dig. § 106.*]

[Ed. Note.-For other cases, see Public Lands,

18. PUBLIC LANDS (§ 108*)-SWAMP LANDSGRANTS.

A grant to the state by the swamp land 519) of swamp lands unfit for cultivation, and act (Act Cong. Sept. 28, 1850, c. 84, 9 Stat. requiring the Secretary of the Interior to make a list of the lands described and cause a patent to be issued to the state, is conditional and is limited to the lands listed by the Secretary of the Interior as lands described, and the subsequent act of 1866 (Act Cong. July 23, 1866, c. 219, 14 Stat. 218), committing the selection of binding effect of the decision as to the lands dethe lands to other officers, does not alter the scribed, and, where a decision is sought to be revised on the ground of fraud or mistake, the revision must be by direct proceeding for that

Cent. Dig. §§ 304, 306; Dec. Dig. § 108.*]
[Ed. Note.-For other cases, see Public Lands,

Under Civ. Code, § 830, defining the bound-purpose. aries of land bordering on tidewater, or other navigable water, or on any other water, lands within the limits of a nonnavigable lake or pond which may be uncovered by the recession thereof belong to the owners of the abutting upland granted by the federal government.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 120; Dec. Dig. § 111;* Boundaries, Cent. Dig. §§ 114-122.] 15. PUBLIC LANDS (8 60*)-SWAMP LANDSIDENTIFICATION-STATUTES.

Superior

Department 1. Appeal from
Court, San Diego County; T. L. Lewis,
Judge.

Action by Rebecca A. Foss against John Johnstone, Jr., and another. From a judgment for plaintiff and from an order denying Act Cong. July 23, 1866, c. 219, 14 Stat. a new trial, defendant John Johnstone, Jr., 218, providing methods of identification of appeals. Affirmed.

E. Swift Torrance, J. B. Mannix, and any notice of such entry was ever given or Stearns & Sweet (E. S. Torrance, of counsel), for appellant. E. E. Keech, for respondent.

SHAW, J. This is an appeal by Johnstone from the judgment and from an order denying his motion for a new trial.

served. The plaintiff has not moved to dismiss the appeal, nor filed any affidavits or other evidence that such notice of entry was served. He raises the point solely by the objection that the record, upon its face, does not show that this court has jurisdiction of the appeal. The statute (941b) does not direct that the notice of the entry of the judgment or order shall be filed or put on record. In the orderly course of procedure it should be filed, even if the statute does not direct it. The sole purpose of the notice is to mark the beginning of the period limited for taking an appeal. When such notice is given, the appellant could make the transcript show jurisdiction by inserting a copy of it with the admission of service, and of the certificate of filing, if it is on file. But, if none is given and the appeal is taken more than 60

The plaintiff makes a preliminary objection to the jurisdiction of the appeal, on the ground that the notice of appeal was filed after the time limited for such appeals had expired. The notice of appeal was filed on September 29, 1909. It purports to appeal both from the judgment and from the order. The judgment was rendered on April 2, 1909. The record does not show the exact date of its entry, but the presumption is that it was entered before the judgment roll was made up, which was on April 8, 1909. The order denying the new trial was made and entered on July 30, 1909. The appeal from the judg-days after the entry, the appellant can make ment was taken within six months after the no showing of record on the subject, and can entry thereof. Hence it was in time, under- prove that his appeal is timely only by filing section 939, Code Civ. Proc. If no notice of with the transcript an affidavit that no notice the entry of the judgment was served on the of entry has been served. In the absence of attorney for the appellant, as provided in notice, the statute fixes the arbitrary limit section 941b, within 60 days before the taking of six months from the time of the entry. of the appeal, then under sections 941b and Jurisdiction of such appeals, taken prior to 941c the sufficiency of the evidence may be that time and after 60 days from the entry, considered on that appeal. But, as we have must therefore depend upon matters not reconcluded that this may be done on the ap-quired to be of record. In these circumstanpeal from the order, it is not material in this ces it seems that the better rule is to recase whether it can be done on the other quire the respondent, if he desires to raise appeal or not. With respect to the order, the the question, to support his claim by affidavit notice of appeal states that Johnstone ap- or other evidence, showing service of the repeals "from the order made and entered in quired notice of entry of the order appealed the minutes of said court on the 7th day of from, and the date of such service. April, 1909, denying the motion of the said defendant, John Johnstone Jr., for a new trial of said action." The order was not made on that date, but was made on July 30, 1909. It is settled that a mistake in the notice of appeal, as to the date of the order or judgment appealed from, does not invalidate the appeal, where there is a description of the order or judgment referred to, in other parts of the notice, reasonably sufficient to identify it. Weyl v. Sonoma, etc., Co., 69 Cal. 202, 10 Pac. 510; Anderson v. Goff, 72 Cal. 65, 13 Pac. 73, 1 Am. St. Rep. 34; Swasey v. Adair, 83 Cal. 136, 23 Pac. 284. The filing of the notice of appeal on Sep-deed, the act which makes the judgment a tember 29, 1909, 61 days after the 30th of July, the true date of the rendition and entry of the order, would make it too late if the provisions of subdivision 3 of section 939, were the only statute applicable to the case. But section 941b allows an appeal to be taken from a judgment, order, or decree at any time after the rendition thereof, provided it is within 60 days after notice of the entry thereof has been served on the attorney of record of the adverse party, or, if no such notice is given, then not later than six months after such entry. The appeal from the order would therefore be valid, unless notice of the entry of the order was served on July 30th. The record does not show that

We think the case may be distinguished from the Estate of More, 143 Cal. 495, 77 Pac. 407. That was an appeal taken before the enactment of section 941b. The transcript on appeal failed to show that the judgment had been entered, and as, under the construction uniformly given to section 939, Code Civ. Proc., an appeal before such entry was premature, and there was no other evidence before the court on the subject, it was held that there was a failure to show jurisdiction and a motion to dismiss the appeal on that ground was granted. The entry of a judgment is a matter of record. It is, in

record. If the transcript purports to be complete and does not show the entry of the judgment upon record in the judgment book as the law directs, there would be some sort of presumption that it had not been entered. It would be incumbent on the appellant in such a case to explain the omission or supply it if, in point of fact, the judgment had been entered. The present case is almost the opposite of that, so far as the legal presumptions and intendments are concerned, and we think the burden should be upon the re spondent to show the service and establish the bar of the limitation, or the lack of jurisdiction. He can always protect himself from an unauthorized or invalid appeal by put

ting the proof of such service on file in the court below and bringing it to the attention of the appellate court.

The complaint states an ordinary cause of action to quiet title. The land in question, according to the contention of the plaintiff, is that part of sections 32 and 5, which underlies the pond as shown on the subjoined plat. Her claim thereto is based on certain patents from the United States for the land abutting upon the alleged pond, and its validity depends on the effect of these patents. They include lots numbered 2, 3, and 4 of section 32, of township 10 S., range 4 W., and lots numbered 1, 2 and 3, of section 5, township 11, S., range 4 W., all in San Diego county. These sections adjoin each other. The patents state that these lots are so numbered "according to the official plat of the survey of the said lands, returned to the General Land Office by the Surveyor General." The following is a copy of the part of the official plat which embraces the lots described and the pond in controversy:

North of the corner to sections thirty-two and thirty-three, the corner being immediately at the edge of the pond. I set my instrument up at the corner of sections thirty-two and thirty-three on the South line of the township, with a variation of thirteen degrees East. Set a flag due North from the corner and on the north side of the pond. I then meandered around the pond." Then follow notes of courses and distances around the edge of the water designated on the map as a pond. These courses and distances correspond with and include the land claimed by the defendant Johnstone. The plat of township 10 was approved April 5, 1881. That of township 11 was approved December 24, 1870. One patent was executed on July 25, 1882; the other, that for lots 1 and 2 of section 5, on May 13, 1890.

The defendant Johnstone claims under a patent from the state of California issued March 10, 1906, purporting to convey to him all the land included in the meander lines of the pond as set forth in the field notes of

lands granted to the state of California by
the act of Congress of September 28, 1850.
Act Sept. 28, 1850, c. 84, 9 Stat. 519. This
patent does not refer to the field notes or
any plat of the United States survey, but it
sets forth the courses and distances thereof
at length, and it includes all the land marked
as "pond" on the aforesaid plat.
The de-
fendant Hale has no interest except as a
mortgagee under a mortgage executed by
Johnstone to her.

The township line shown on this map was the Pascoe survey aforesaid, as "swamp and surveyed in 1854 by James E. Freeman. His overflowed lands," obviously referring to the field notes referring to natural objects near the post set at the common corners of sections 4 and 5, 32 and 33, say: "A lagoon containing a few acres bears north about six chains." The section lines of these townships were surveyed in 1869 by James Pascoe. His field notes relating to the survey of the section line between sections 4 and 5, starting from the south end, contain the following: "At seventy-nine chains twenty links, to an old corner on township line on the south bank of large pond of alkaline water. Then

The theory of the plaintiff is that the pat