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.