are followed by a recital of the details of the accident, the contusion and the shock to his nerves, which Mr. Clarke experienced. Then occur the words, "and if you find or believe" (the italics are ours), followed by a recital of respondent's theory of the proximate cause of death, which they were told, if believed by them, would justify a verdict for plaintiff. Appellant's counsel insist that this instruction is prejudicially erroneous, citing in that behalf Fries v. American Lead Pencil Co., 141 Cal. 610, [75 Pac. 164]. That authority does not sustain the contention. It is true that in the Fries case an instruction was condemned which began with the words, "if in this case you believe from the evidence," etc., but the error lay not in the use of the word "believe," but in the statement to the jurors that they could award such damages as they might "feel" the child entitled to receive. This gave the jurors, as the court held, a right to allow "play to their emotions of sympathy for the injured child." [8] It is clear that the instruction there held erroneous is not at all similar to the one here criticised.

It is further asserted that the court committed radical error by instructing the jury that in order to defeat the claim the diseased condition of the heart or appendix "must have existed in the body of James T. Clarke at the time of the accident." This statement, wrenched from its context, would of course be an erroneous one, but it occurs in the course of a long instruction to the effect that if the diseased condition existing at the time of the operation or autopsy was "not concurrent with the injury, or existing prior thereto," and was "a natural result of the injury, and that the resulting death was solely due to the bodily injuries, and not to any independent cause," the verdict must be for the plaintiff. The part of the instruction to which objection is made was followed by this sentence: "If you believe from the evidence that the acute suppurative appendicitis and the valvular heart disease, with hypertrophy of the heart, was brought about by the weakened condition of the body of James T. Clarke, as the result of said injuries, and not from some condition existing at the time or prior to the injury on December 10, 1914, then your verdiet must be in favor of the plaintiff and against the defendant." [9] The instruction was proper by reason of the conflicting claims of the litigants as to the existence or nonexistence of disease prior to the accident. Undoubtedly, death from any

independent cause, whether existing prior to or supervening at a time subsequent to the accident, would defeat the claim. of plaintiff, but the instruction was dealing with one phase of the problem, namely, the existence or nonexistence of disease prior to the accident. Nevertheless, the jurors were told that death from "any independent cause" would prevent recovery. Therefore, we are of the opinion that the jurors were not misled by the instruction. An instruction somewhat similar was approved in New Amsterdam Casualty Co. v. Shields, 155 Fed. 54, [85 C. C. A. 122].

No other alleged errors in the giving or refusing of instructions require further comment than that we are of the opinion that the very exhaustive charge was fair and free from substantial error.

The judgment is affirmed.

Sloss, J., Shaw, J., Lawlor, J., and Angellotti, C. J., concurred.

Rehearing denied.

Melvin, J., Olney, J., Shaw, J., and Angellotti, C. J., concurred.

[S. F. No. 7743. In Bank.-February 28, 1919.]

CITY OF OAKLAND (a Municipal Corporation), Respondent, v. SAMUEL H. BUTEAU et al., as Trustees, etc., Appellants.

[1] BOUNDARIESLAND BORDERED BY RUNNING STREAM SHIFTING BOUNDARY.-Where land is bordered by a running stream, a boundary marked by a water line is a shifting boundary, going landward with erosion and waterward with accretion, and express statutory declaration to this effect is found in section 1014 of the Civil Code. The rule is the same in this state as to lands bordering tidal waters. [2] MUNICIPAL CORPORATIONS-CITY OF OAKLAND-LEGISLATIVE GRANT OF WATERFRONT LANDS-"SHIP CHANNEL" AS BOUNDARY-MEANING OF TERM.-Under the act of the legislature of May 4, 1852 (Stats. 1852, p. 180), incorporating the town of Oakland and granting to the town the waterfront lands lying within certain limits "between high tide and ship channel," the true interpretation of the term

"ship channel" is the line of low tide, as affected by such gradual and imperceptible changes as may from time to time take place in . the location of that line.

[3] ID.-ACTION BY CITY FOR RECOVERY OF LAND BELOW SHIP CHAN

NEL-POSSESSION BY DEFENDANTS FOR WHARFING PURPOSES-LOCATION OF LOW TIDE LINE OF 1852-BURDEN OF PROOF.-In an action by the city of Oakland to recover the possession of certain waterfront land lying below the line of ship channel held by defendants and used by them for wharfing purposes, the city having by prior condemnation proceedings acquired the right of possession of the land above ship channel theretofore owned by the defendants in fee, the burden was upon the city to show where, with reference to the present low tide line, the line of 1852 lay, and that defendants were wrongfully in the possession of the land sought to be recovered.

[4] ID. PLEADING ANSWER-TRUE BOUNDARY LINE-ABSENCE OF ESTOPPEL. In such action, the defendants were not precluded from contending that the boundary was not the tide line of May 4, 1852, by setting up in their answer that the true boundary was the line of extreme low tide, rather than ordinary low tide.

APPEAL from a judgment of the Superior Court of Alameda County. William H. Waste, Judge. Reversed.

The facts are stated in the opinion of the court.

Chapman & Trefethen, Goodfellow, Eells, Moore & Orrick, S. A. Bailey, William B. Bosley and Garret W. McEnerney for Appellants.

Paul C. Morf, H. L. Hagan, City Attorneys, and John J. Earle, Assistant City Attorney, for Respondent.

SLOSS, J.-The defendants appeal from a judgment awarding the possession of real property to the plaintiff.

This action and a prior one entitled City of Oakland v. Wheeler et al., 34 Cal. App. 442, [168 Pac. 23], are companion cases. In each the city of Oakland, as plaintiff, proceeded against the same defendants as trustees of the Merritt Hospital. The suits affect adjacent parts of a tract of land on the waterfront of Oakland. The property involved in the two actions, viewed as a unit, consists of a parcel bounded on the north by First Street, on the east by Washington Street extended southerly, on the west by the center line of Clay

Street extended southerly, and on the south by the north pierhead line of Oakland harbor, as established by the United States government. Washington and Clay Streets are parallel, and First Street runs at right angles to them. The pierhead line has the same general direction as First Street, but is not exactly parallel thereto. At the intersection of the westerly line of Washington Street projected, the pierhead line is about 510 feet southerly from First Street. At its in-. tersection with the center line of Clay Street projected it is some 560 feet distant from First Street. The distance between the westerly line of Washington Street and the center line of Clay Street is 340.25 feet. Part of the land involved is above the line of low tide and part of it below, the pierhead line established by the federal government lying some distance southerly from the low tide line.

Prior to the institution of either action the defendants were admittedly the owners of so much of the tract as lay above the line of low tide. They held as successors to the Oakland Water Front Company, which had acquired its title from Horace W. Carpentier, who, in turn, deraigned title from the city of Oakland. The history of the legislation, and the subsequent dealings of the city, affecting the waterfront lands is fully set forth in the decision of this court in City of Oakland v. Oakland Water Front Co., 118 Cal. 160, [50 Pac. 277], and we need not repeat it here. It will suffice to say that by an act of the legislature of May 4, 1852 (Stats. 1852, p. 180), incorporating the town of Oakland, the legislature granted to the town (the predecessor of the present city of Oakland) the lands lying within certain limits "between high tide and ship channel." The term "ship channel," used to mark one of the boundaries of the grant, has been the subject of much discussion in this court and elsewhere, and we shall have occasion to advert to it at a later stage of this opinion.

The earlier case to which we have referred (City of Oakland v. Wheeler) was a suit in eminent domain, by which the city of Oakland sought to condemn so much of the tract occupied by the defendants as lay above the line of "ship channel." The judgment of condemnation was made December 21, 1911, the damages to be paid defendants being assessed at $211,315.06. A final order of condemnation was made February 10, 1912, and an order letting the municipality into possession on March 9, 1912.

Appeals from the judgment of condemnation and the two orders were taken and were heard in the district court of appeal for the first appellate district, where the judgment and orders were affirmed on August 23, 1917. (City of Oakland v. Wheeler, 34 Cal. App. 442, [168 Pac. 23].) A petition for transfer of the case to this court was denied.

The present action was begun on February 23, 1912, after the judgment and the final order of condemnation, and shortly prior to the order letting the city into possession of the condemned area. It is brought to recover possession of the land lying below the line of ship channel. The theory upon which the city went in the litigation was that by the condemnation proceedings it had acquired the right of possession of the land above ship channel theretofore owned by the defendants in fee, and that in the present action it was entitled to recover possession of the land below ship channel, held by the defendants and used by them for wharfing purposes. The claim was, and is, that the defendants and their predecessors had originally gone into occupancy of the land here involved as tenants of the city of Oakland under a lease which had expired before this suit was commenced. The appellants strongly attack the soundness of this claim, but the conclusions we have reached on other points will dispose of the appeal without the necessity of passing on the question just suggested.

In the condemnation suit, as well as in the present action, the city took the position that the line marking the boundary of the property granted to the city of Oakland by the act of May 4, 1852, and, consequently, the southerly boundary of the land owned by the defendants as successors of Carpentier, to whom the city had conveyed, was the line of low tide, as that line existed on the fourth day of May, 1852, the date of the enactment of the granting statute. In the proceeding in eminent domain the property sought to be acquired was described as bounded on the south by "the line of ordinary low tide of May 4, 1852," and this description was carried into the judgment and the final order of condemnation. In the present action the plaintiff sought to recover possession of a tract described as bounded on the north by "the line of ordinary low tide of May 4, 1852," and the judgment under review awards to the plaintiff recovery of the possession of a parcel of land so bounded. The boundary of the corporate limits of the town of Oakland and of the lands granted to the town by the state,