¶1delivered tbe opinion of tbe .Court; Rhodes, C. J., and Crookett, J., concurring:
¶2Tbe 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.
¶3Written 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.
¶4It 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.
¶5Upon 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 somewhat surprising that he has been able to proceed so far with his application as to obtain the certificate. It could not have been intended in authorizing the sale of the swamp and overflowed lands to enable persons to obtain titles to lands under the navigable waters, which are incapable of being-reclaimed for agricultural purposes, and which could not be utilized without materially interfering with navigation. (People v. Morrill, 26 Cal. 336.)
¶6While, however, the attorney for the plaintiff admits that that the patent, which the defendant may obtain, would be invalid, when these facts should be made to appear, he claims that it would not be void upon its face, but it would require evidence dehors the patent to show its nullity, and, therefore, its possession would be injurious to the plaintiff.
¶7We think the plaintiff is correct as to the effect of the patent, but we do not see upon what principle the Court will give him relief. The claim of the defendant is not a cloud upon his title. There is no claim to any portion of his land. Admitting that the title of the State would pass to the defendant under the patent it would not authorize him to change the water-front or obstruct navigation. The State can probably sell the land and authorize the purchaser to extend the water-front so as to enable him to build upon this land ; but this must be done in the interest of commerce, and that must be first determined by the Legislature. No such right to obstruct navigation passes to a purchaser under the laws for the sale of swamp and overflowed land. If, therefore, the defendant acquires a patent, he would not have, under the facts found in this case, the right to obstruct the plaintiff in the free use of the water-front.
¶8The plaintiff, as a riparian owner, has also a right to accretions to his land, and it is said the claim of the defendant will be a cloud upon his title to such accretions. But as yet there is no such property, and there may never be. He *474cannot ask tbe Court to interfere in advance, and prevent a cloud being cast upon bis title to that wbicb may never have an existence.
¶9If tbe facts found are correctly found, we tbink there was no error in refusing to find upon tbe other issues, for tbey become immaterial. Judgment affimed.
¶10By
¶11I concur in tbe judgment.