The evidence was sufficient to warrant the jury in finding that the land in controversy was swamp and overflowed land, within the meaning of the Act of Congress of the 28th of September, 1850.
The jury were instructed at the instance of the plaintiff that if the lands in controversy were, at the passage of |he act of September 28, 1850, rendered unfit for cultivation, by reason of “periodical overflow at the season of sowing and harvesting,” they passed to the State by the operation of that act. The court also gave, at the instance of the defendant, an instruction to the effect, that if the lands were not, by reason of the overflow, rendered unfit for cultivation “in a fair crop of potatoes, or corn, or barley, or buckwheat, or any other of the staple productions of the country,” for the greater number of years prior to and including the year 1850, then the lands were not swamp and overflowed lands within the meaning of the Act of Congress of September 28, 1850; and in connection therewith gave this modification: “The fact that any of the staple productions above specified may be cultivated and raised on the land is *145not all that is required, but whether such productions, or some of them, may be usually cultivated successfully, is a fact exclusively for your decision upon the evidence.” The idea expressed by the modification is, that the land is not swamp and overflowed land, unless it Avas rendered unfit for successful cultivation by reason of the overflow, etc. This accords with our construction of the act of September 28, 1850. If the lands, by reason of the overflow, were usually rendered unfit for the successful cultivation of the staple crops, they are swamp and overflowed lands within the meaning of the act of Congress. (Kernan v. Griffith, 31 Cal. 461; Kernan v. Allen, 33 Cal. 542.)
The township plats were not offered in evidence to prove that the lands were in fact swamp and overflowed land, nor for any particular purpose expressed at the time of their introduction. The general objection on the ground that they were irrelevant and incompetent was not well taken. If they were admissible for any purpose, they were clearly admissible to prove that the lands had been surveyed by the United States, and as tending to prove that the title had vested in the State, under the provisions of the act of Congress of July 23, 1866.
The other points do not require any particular notice.
Judgment and order affirmed. Remittitur forthwith.
Neither Hr. Chief Justice Wallace nor Mr. Justice McKinstry expressed an opinion.