to be thereunto affixed this the day herein first above written. (Seal) "ROBERT RAUHUT, Agent. "Witness: J. E. PREWETT, Auburn. "Witness our hands and seals this second day of March, (Seal) "Secretary Alta Placer Mining Company. "ANTON BOEGLE, "Stockholder. (Seal) "J. W. PARRISH, "Stockholder. "Witness: P. E. SHANNON." Then follows a certificate of acknowledgment by Rauhut before a notary. And then comes the following:"We, the holders of two thirds of the capital stock of the Alta Placer Mining Company, hereby ratify the foregoing mortgage. "Witness our hands this February 12, 1886. "ROBERT RAUHUT.. "J. W. PARRISH." And then follows a certificate by the secretary that the persons who signed the ratification were the holders of two thirds of the capital stock. The ratification was acknowledged before a proper officer. It affirmatively appears that the recital in the clause of the mortgage above quoted, as to a resolution of the board of directors, is untrue. The secretary, who was a witness for the plaintiff, testified as follows: "I was secretary at the time, and Robert Rauhut was authorized by the mortgagor to execute said mortgage; also, so were the president and secretary authorized to execute it. The authority was verbal. There was no resolution of the board of directors authorizing any one, either the president or secretary, or both, or said Robert Rauhut, to execute or deliver the mortgage; neither was the authorization in writing." And there is no evidence to the contrary. Such being the case, it seems clear that even if it be assumed in favor of the respondent (for the purposes of this opinion only) that the execution was sufficient in form, the mortgage was void for want of authority from the company to execute it. Rauhut was not an officer of the corporation; and authority to execute an instrument required by law to be in writing could only be conferred upon him by a writing. (Civ. Code, sec. 2309.) His signature, therefore, may be dismissed from consideration. And even if his signature and the final clause of the mortgage can be rejected as surplusage, and the signatures of the president and secretary be taken as the signatures of the morgagee, the difficulty as to the want. of authority still meets us. There is no corporate seal, and it affirmatively appears that there was no resolution of the board of directors. The president has not the power, by virtue of his office, to mortgage the property of the company (see generally Bliss v. Kaweah C. & I. Co., 65 Cal. 502); nor has the secretary such power by virtue of his office (Blood v. Marcuse, 38 Cal. 594; 99 Am. Dec. 435); nor have both together the power which neither has separately; nor have the stockholders such power. (Gashwiler v. Willis, 33 Cal. 12; 91 Am. Dec. 607.) The powers of a corporation must be exercised, and its property controlled, by its board of directors (Civ. Code, sec. 305); the decision of a majority of the directors, "made when duly assembled," being valid as a corporate act. (Civ. Code, sec. 308.) The board must be "duly assembled." (Harding v. Vandewater, 40 Cal. 78.) And their transactions should be recorded. (Civ. Code, sec. 377; Southern Cal. Ass'n v. Bustamente, 52 Cal. 192.) The directors when not acting as a board have not the necessary power. (Gashwiler v. Willis, 33 Cal. 18; 91 Am. Dec. 607.) The absence of a resolution of the board renders the instrument invalid. (Southern Cal. Ass'n v. Bustamente, 52 Cal. 192.) There is nothing to the contrary in the act of 1880 in relation to mining companies. Section 1 of that act provides that "it shall not be lawful for the directors of any mining corporation to sell, lease, mortgage, or otherwise, dispose of the whole, or any part, of the mining ground owned or held by such corporation, nor to purchase or obtain in any way any additional mining ground, unless such act be ratified by the holders of at least two thirds of the capital stock of such corporation. Such ratification may be made either in writing, signed and acknowledged by such stockholders, or by resolution duly passed at a stockholders' meeting called for the purpose." (Laws 1880, p. 131.) This provision does not dispense with action by the board. It requires such action, but requires, in addition, the consent of the holders of two thirds of the capital stock. We do not think that the subsequent levy by the directors of an assessment to pay the debt secured by the mortgage had the effect of rendering the latter valid. The respondent makes some criticism upon the denials of the answer. But plaintiff filed amendments to its complaint, alleging, among other things, the execution and delivery by the corporation of the mortgage; and the parties entered into a stipulation that "for all the purposes of the trial and determination of the rights of said parties in this action, the said amended answer shall be deemed, taken, and treated as a special denial and traverse of the said amendments to said complaint, the same as if a new and an additional answer had been made, and served and filed, denying the same specifically as required by law." This was sufficient to put in issue the execution by the corporation of the said mortgage. These views render it unnecessary to consider the other points made. We therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial. BELCHER, C. C., and FOOTE, C., concurred. The COURT.-For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial. [No. 11788. Department One.-April 22, 1889.] SMITH FILLMORE, APPELLANT, v. L. P. JENNINGS ET AL., RESPONDENTS. ACCRETION-LAND FORMED BY BELONGS TO OWNER OF BANK OF STREAM. -Land formed by natural accretion upon the bank of a stream belongs to the owner of the bank on which it has formed, notwithstanding the process of accretion has materially reduced the size of the adjoining stream, and rendered it unnavigable. APPEAL from a judgment of the Superior Court of Humboldt County, and from an order refusing a new trial. The facts are stated in the opinion of the court. P. F. Hart, and J. D. H. Chamberlin, for Appellant. S. M. Buck, and George D. Murray, for Respondents. The accretion formed on the bank of the island became the property of the defendants, although the stream had become greatly diminished and unnavigable (Benson v. Morrow, 61 Mo. 353; Tappendorf v. Downing, 76 Cai. 169; King v. Young, 76 Me. 76; 49 Am. Rep. 596.) BEATTY, C. J.-This is an action to recover land formed by accretion. Defendants had judgment in the superior court, from which, and from an order denying a new trial, the plaintiff appeals. The essential facts out of which the controversy arises, and upon which its solution depends, are these: Eel River flows westerly. Before reaching the ocean it divides into two channels, the main channel being on the north, and the smaller channel, known as Eastlake Slough, being on the south. Between these two channels is a body of swamp land of several hundred acres, called Cock Robin Island. When the township embracing this portion of the river and Cock Robin Island was surveyed by the United States surveyor, the south bank of Eastlake Slough was meandered for some distance to the west of the eastern extremity of the island, to a point where it entered the swamp land. The north bank of the main river was also meandered. On the official plat of the township both channels of the river were delineated, and Cock Robin Island was shown as swamp land. After this survey the grantors of plaintiff acquired from the United States land on the south bank of Eel River, a short distance east of the eastern extremity of Cock Robin Island, the northern boundary of the subdivision so acquired being, of course, Eel River. The grantors of the defendants acquired from the state of California, as swamp land, Cock Robin Island, their southern and northeastern boundaries being the two channels of Eel River, the main channel on the north, and Eastlake Slough on the south. In the course of years changes have occurred in these channels. The main channel of Eel River, from a point some distance above the lands. of plaintiff, now flows considerably to the northward of plaintiff's lands, which on the eastern side have been correspondingly extended by accretion. But at the same time that this change has occurred Eastlake Slough has been wearing away its south bank, and the point at |