Supreme court of the United States. No. 135. The United States, appellants, vs. John A. Sutter. Appeal from the District court U.S. for the Northern district of California.

256 The United States vs. Sutter,
try claimed by Sutter and his grantees. An attempt was made to show
that there was a small margin along the Sacramento, and not liable to
inundation; but the truth is, and it sufficiently appears in the evidence,
that the country for miles each side of the river is periodically inundated by the impulse, swelling, and currents of the rivers. True
it is, that the banks are slightly higher than the land back, but it is
nevertheless liable to overflow. There is no instance of a river, such
as the Sacramento, having its banks above high water. The Misssisippi is of the same character, and liable to overflow. The
347 city of Sacramento is a standing monument of the truth of the
assertion, and her debt has been doubled to protect herself
from their annual overflows.-(See depositions of John Bigler, James
M. Sanford, Mr. Cornell, and others.) This land is excluded from
the terms of the grant, and must be by the decree.
65. Again by the act of Congress of 185, granting to Arkansas the
swamp and overflowed land, and also granting those lands within her
limits to other States. This is the construction given to the act by
the Department of the Interior, and that all the swamp and overflowed
land of the United States within the limits of California, by that act,
passed immediately to the State of California. The legal title had
not yet passed out of the government of Mexico when the treaty of
Guadalupe Hidalgo was signed.
There had been no approval of Sutter's claim by the assembly departmental or the supreme government, and now the State of California having the legal title, the United States cannot, by the issuance
of a patent, give any rights as to those overflowed lands to the claimant,
(see Manard's heirs vs. Massey, 8th Howard,) and the decree of the
court, if the claim shall be confirmed at all, should exclude such lands,
leaving the boundaries of this quality of land to be ascertained by the
surveyor general.
66. The idea advanced by the brief of claimant, to the effect that
there is a small margin on the banks of the river not liable to overflow,
and that that narrow strip of land was the land granted, is certainly
untenable. The fort of Sutter was on the high lands, and not on the
margin of the river; Hock Farm also is on high ground, and 11 leagues
of land not subject to overflow are easily surveyed at and near the
present residence of the claimant, but they cannot be located in the
form prescribed in the Fremont case at any point south of the tract
where Hock Farm is situated, between Sacramento and Feather rivers.
67. Before closing this brief, it may be proper to advert to the question of the admissibility of some of the testimony presented on the
part of the government.
348 68. Are thewitnesses who hold adversely to the claimant,
and as settlers on some of the land covered by the map of the
claimant, competent as witnesses? None of them are within the
lines of his real claim. The common law rule adopted by statute in
California, (see Laws. 1854, p. 66, sect. 393,) makes the test of interest, "that he will gain or lose by the direct legal operation and
effect of the judgment, or that the record of the judgment will be legal evidence for or against him in some other action."