question is not before us we need not express any opinion on the subject. That question will have to remain open for future determination in case upon a new trial the evidence may show a different law in New York from that which prevails here. For these reasons we are of the opinion that the defendant, under the facts found, had no title to the bonds in controversy, and that the plaintiff should have judgment.

The judgment is reversed.

Wilbur, J., Shaw, C. J., Sloane, J., and Lawlor, J., concurred.

[S. F. No. 9867. In Bank.-July 11, 1922.]

CHARLES GERVASONI et al., Respondents, v. CITY OF PETALUMA (a Municipal Corporation), et al., Appellants.

[1] MUNICIPAL CORPORATIONS-CITY OF PETALUMA-BONA FIDE OccuPANT OF GRANTEE UNDER DEED OF TOWN TRUSTEES-SUFFICIENCY OF EVIDENCE. In this action to quiet title to certain property in the city of Petaluma, to which the plaintiffs claimed ownership in fee simple, but which title the defendant city denied, and set up an easement and right of way for passage through, over and across the property as a public street, the finding that the grantee of the deed which formed the foundation of the plaintiff's title and which was executed by the board of town trustees on April 14, 1868, under authority of the act of the legislature (Stats. 1867-8, p. 298) enacted to carry out the act of Congress of March 1, 1867, granting to such town authorities the land therein in trust with power to convey so much thereof as was in the bona fide occupancy of parties, was a bona fide and undisputed occupant of the property at the time of the execution of such deed, is supported by the evidence.

[2] ID. RESURVEY UNDER ACT OF CONGRESS-MAP SHOWING STREET.RIGHTS OF PRIOR BONA FIDE OCCUPANT.-A deed made by the trustees of the town of Petaluma to a bona fide occupant of land therein after the resurvey of the lands of the town under the act of Congress of 1864 was not void as to the portion of such occupied land as was shown on such map to be a public street,

where the occupant was in the possession of the land at the time of the adoption of such act.

[3] ID. DESCRIPTION IN DEED REFERENCE TO MAP DELINEATING STREET.-Where a deed made by the trustees of the town of Petaluma recited that the grantee was in the exclusive and bona fide occupancy of the premises, the grantee was not bound by the description referring to the map of the town which delineated a street as traversing the property.

APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge. Affirmed.

The facts are stated in the opinion of the court.

E. J. Dole for Appellants.

F. A. Meyer and T. J. Geary for Respondents.

RICHARDS, J., pro tem.-This action is one to quiet title to certain property in the city of Petaluma, to which the plaintiff's claim ownership in fee simple, but which title the defendant city of Petaluma denies, and further sets up an easement and right of way for passage through, over and across the said property as a public street. The trial court found in the main in the plaintiffs' favor, adjudging them to be the owners of the frontage claimed by them upon Main Street in said city, but reserving to the city certain easements in the rear portion of the property covering what is known as "Water Street." The defendants have appealed from the judgment.

As to the main facts in the case there is no material dispute. The city of Petaluma had its beginning during or possibly prior to the year 1850, when a number of settlers collected on the westerly side of Petaluma Creek, or river, at a point at or near the head of navigation of the said The land at that point was unsurveyed and therefore unoccupied government land, the title to which was vested in the United States. A town grew up at this point, roadways and streets were located according to convenience and by user, and property occupied by the settlers became of more or less value and not a few transfers were made. For more than a decade there was no other title in the occupants of the property thus acquired and transferred than the possessory title of those who had settled thereon

or their successors. Prior to 1860 there appears to have been a map of the town known as the "Brewster Map," but it does not appear to have been found or offered in evidence in this case. In the year 1858 the town of Petaluma was incorporated by a special act of the legislature, which defined the exterior limits of said town but which did not embrace any details as to its interior lots, blocks or streets. (Stats. 1858, p. 140.) In the year 1860 a survey and map known as the "Eliason Map" was made by order of the board of trustees of the town, which purported to show its lots and streets as they then existed on the ground and which survey and map, after some minor changes had been made by order of that official body, was accepted and filed as an official map of said town. In 1864 [13 Stat. 343] an act of Congress was adopted providing for a survey of the town of Petaluma, which act embodied a method for acquiring title to the lands held by bona fide occupants at the time of the adoption of said act. This act was amended in certain particulars a year later [13 Stat. 529]. The survey provided for in said act was made and a map drafted and adopted and known as the "Stratton Map." This map was much more detailed as to the size and description of the lots and width and location of the streets delineated thereon than was the Eliason map, from which it also differed in certain other particulars to be hereafter noted. The Stratton map was approved and certified by the trustees of the said town and was filed for record in the recorder's office of the county of Sonoma as and for an official map of Petaluma, December 30, 1865. On March 1, 1867, an act of Congress was approved providing "That all the right and title to the land situated within the corporate limits of the towns of . . . Petaluma in the State of California, as defined in the acts of the Legislature of that state incorporating said Towns be and the same is hereby relinquished and granted to the corporate authorities of said towns and their successors in trust for and with authority to convey so much of said land as is in the bong fide occupancy of parties, upon the passage of this act, by themselves or tenants, to such parties; provided that this grant shall not extend to any reservation of the United States nor prejudice any adverse right or claim, if such exist, to said land or any part thereof, nor preclude a judi

cial examination and adjustment thereof." [14 Stat. 418.] In the following year the state legislature adopted an act authorizing the trustees of the town or city of Petaluma to execute the trust provided for in the foregoing act of Congress by the execution and delivery of deeds to the persons entitled thereto under said congressional act. This act contained a proviso "that in all cases of dispute or contest the parties or persons disputing or contesting should settle and determine their respective rights in the courts of the State; and the said trustees shall in no case of dispute or contest make, execute or deliver a deed to either disputant or contestant until a final determination of the rights of the parties in the courts as herein provided." (Stats. 1867-68, p. 298.) In the meantime, and commencing, as we have seen, early in 1850, the influx of settlers upon the town site of Petaluma had been going on. Among these early settlers coming in about the year 1850 were Captain Tom Baylis and David Flogdell and his wife Honora. The two men were intimate friends and probably partners. They built and for a time conducted together upon a portion of the property they had settled upon the Pioneer Hotel, which, according to tradition bore the more intimate appellation of "Tom and Dave's." At the early date of their arrival and appropriation of the properties they occupied there were no streets, but the Pioneer Hotel, according to the quite exact identification of several early settlers, stood upon or near the corner of an indefinitely outlined passageway leading down to tide water, where boats were accustomed to land. That this passageway had not, as late as 1860, acquired the definiteness or character of a public street would seem to be fairly inferable from the fact that it is not laid out or delineated as such upon the Eliason map as accepted and approved by the trustees of the town in that year and from which it appears that English Street, of which it would otherwise have been the elongation, terminated at the west line of Main Street and that the property across which said passageway ran appears thereon as lots "8" and "9" of block "B," and are not shown to be traversed by any road, passageway or street. After a time the firm of Baylis and Flogdell was dissolved and they divided up their properties, Baylis taking the lower or southerly lot, while the lot upon which the Pioneer Hotel

stood was retained by Flogdell, who continued to conduct the hotel, while Captain Baylis retained the shipping business which had grown up at the landing place below. Flogdell died in the early 60's, and his widow, Honora, succeeded to the hotel property. Some controversies, more or less traditional, seem to have arisen between Captain Baylis and the widow of his former associate over the passageway which ran across their properties down to the landing place, but these disputes were finally settled by the marriage of Captain Baylis and the widow, Honora, at a date in the middle 60's not precisely fixed. Captain Baylis seems also to have departed this life upon some date prior to 1868, since it appears that Honora Baylis was his widow at an early date in the latter year. On April 14, 1868, the board of trustees of the town or city of Petaluma, acting under the authority of the act of Congress of 1867, above referred to, and also and by authority of the act of the legislature of 1868 empowering them to execute the trust with which they had been invested by the congressional act of the previous year, executed a deed to Honora Baylis, purporting to grant to her a lot "commencing on the east line of Main Street at the Southeast corner of Lot 353; thence Southerly along the Easterly side of Main Street 80 feet; thence at right angles to Petaluma Creek; thence northerly up said creek to a point at the continuation of the southerly line of said lot 353; thence following the southerly line of lot 353 westerly to Main Street and the place of beginning." The number of the lot given as lot 353 in the foregoing description refers apparently to the lot designated by that number upon the "Stratton Map" and the tract of land covered by the foregoing description would, as to a portion thereof, include the fifty-foot frontage of lot 3521⁄2 as shown upon said map, and would also, and in addition thereto, embrace about thirty feet of the land which was designated on said map as a continuation of English Street down to Petaluma Creek. This deed contains the following significant recital:

"Said party of the second part having fully complied with all of the provisions of said ordinances of said Board of Trustees, and her claim to said premises having been fully approved by them, the said Honora Baylis having been a bona fide occupant of said premises on the first day