
    [No. 4,069.]
    WRIGHT v. CARPENTER.
    Swamp and Ovebelowed Land.—The test by which the question, whether land is “swamp and overflowed” land, must be determined, is, not whether it may be profitably cultivated, but whether it may be successfully cultivated.
    Appeal from the District Court of the Sixth Judicial District, Yolo County.
    The action was ejectment, in which the plaintiff claimed title under a patent from the State for the land as swamp and overflowed, granted to the State by the Act of September 28th, 1850, and the defendant claimed under a patent from the United States, issued in accordance with the Preemption Act of 1841. Both patents were issued prior to July 23d, 1856.
    The case was tried by a jury, and the only question being as to the character of the land at the date of the passage of the Act granting the swamp and overflowed lands to the State (September 28th, 1850), the Court, against the objection of defendant, gave the instruction quoted in the opinion. The jury found a verdict for the plaintiff, and judgment was rendered accordingly. The defendant, appealed.
    
      W. C. Belcher, W. W. Pendegast and S. G. Harper, for Appellants, argued that the cultivation might be successful and yet not profitable, by reason of low prices, highways, or want of demand for crops raised, and cited, Kernan v. Griffith, 33 Cal. 546.
    
      
      Jo Hamilton and C. P. Sprague, for Respondents, argued that the word “ profitably,” as used in the instruction, was equivalent to “ successfully.”
   By the Court:

The Court instructed the jury to the effect, that though the land, at the date of the grant, September 28th, 1850, was or may have been periodically or even annually overflowed, still, if after the subsidence of the waters “ it could have been profitably cultivated each year, or for the majority of a series of years, ” in any of the staple crops, it was not swamp and overflowed land within the meaning of the Act of Congress. In giving this instruction, the Court, in our opinion, erred. The test by which it may be determined whether land is “swamp and overflowed ” land is, not whether it may profitably be cultivated, for the qualities and conditions of the soil may be such that its cultivation would be unprofitable, though the land was in no sense swamp and overflowed land. The word “successfully,” in the instruction which was approved in Kernan v. Allen, 33 Cal. 546, is not the synonym Of “ profitably,” as employed in the instruction in this case.

Judgment and order reversed, and cause remanded for a new trial.  