*the land—that is, he who hath the jus possessionis. [573] 4. That a clear subsisting outstanding title in another means such a title as the stranger could recover on in an action of ejectment. 5. That one tenant in common may be barred by the Statute of Limitations while the statute does not run against his co-tenant. 6. That where a person is owner of an undivided portion he can only recover such undivided portion, whether he sues his co-tenant or a stranger.

When this case was before the Court, we were pointed to the case of Touchard v. Crow, 20 Cal. 150, in which the question now before your Honors arose. That case is not discussed upon principle. It is decided upon the strength of Stark v. Barrett, 15 Cal. 731. This last case is not discussed upon principle, and no authority is referred to. On the other hand, in the case of Clark v. Huber, 20 Cal. 196, the Court held that, in an action of ejectment, the plaintiff could only recover the half of the damages. This was admitted by the counsel who argued the case. Is there not an inconsistency in this? Can a man be entitled to the whole of a thing, and only half damages for the withholding of that thing?

In the case of Welch v. Sullivan, 8 Cal. 187, this Court held, before the passage of our Statute of 1857, that tenants in common could not sue together—that is, they had no such joint interest as enabled them to bring suit together. Now, as the action of ejectment might be brought upon mere prior possession, or upon title, how is it that they could not sue together to recover their joint possession, if it is true that the possession of one is the possession of the other? Joint tenants, having a unity of everything, must sue together. And if it were true that the possession of one tenant in common is the possession of the other, in the sense contended for, it would follow that they must sue together when they rely upon prior possession alone.

II. The counsel for the respondent say we can have no standing in Court, because we cannot be preemptioners, for the reason that the law of Congress prohibited us from taking any preemption claim on land claimed by a Spanish grant. By the Act of 1841, only surveyed public lands could be preempted. California being an exceedingly large State, and her population being scattered all *over [574]

the State, Congress, for the benefit of settlers, deemed it expedient to extend the preemption privilege by the Act of 1853 (U. S. Statutes at Large, vol. 10, sec. 6, p. 246) to unsurveyed lands. As long as preemption rights could only be acquired on surveyed lands the Government could protect Spanish grants by refusing to survey the adjoining lands until such grant was confirmed and surveyed. And this was absolutely necessary, for the reason that many of the Spanish claims were at best mere equities, and would have been divested by subsequent legal titles, acquired before the equity was perfected into a legal title. But when the Government determined to extend the preemption laws to unsurveyed public lands as well as surveyed, it was necessary to protect those equities acquired under the Mexican Government, hence the proviso. It only meant to protect Spanish grants by giving them the preference; but, saving their rights, the preemption is perfectly good. If this were not so, then these lands never can be preempted, until Congress chooses to pass a law making them so, even after the survey.

This construction certainly would change the whole meaning of the Acts of 1841 and 1853; for the Act of 1841 extended to all public lands which were surveyed, and the Act of 1853 was meant to extend the law of 1841 to unsurveyed as well as surveyed public lands. The Act of 1853 was not intended to alter the Act of 1841 in any particular. This law of 1853 did not mean any claim that any person thought proper to make to any land in the State, for otherwise any person could have defeated all preemption claims by claiming the whole State, and such lands as were claimed by grants which were never presented would not be liable to preemption. Congress never meant this. They meant to say that in respect to such lands as were finally confirmed and surveyed, the preemption right should not affect the Spanish grant.

III. A Mexican grant without juridical possession is not such a title as will sustain ejectment.

It is useless in this case to argue this in extenso. It is sufficient to make a few general observations. First, every grant provided that the grantee should get from the municipal authority juridical possession. When he got juridical [575] possession he had such a title as he could recover

upon; but until then he only had an equity, which could lead to the possession, but this was by an official act. This is directly said by the Supreme Court of the United States in Fremont's case, 17 How. Here they recognized the fact that preemptors might get a better right than Fremont by locating their claims first. Until location he has a right to a specific quantity; after location, he has a right to the specific land itself.

Could Fremont recover in an action of ejectment seventy or eighty leagues of land when he was only entitled to eleven? Can Mahoney recover a league and a half of land when he is only entitled to a half league?

IV. The Surveyor-General is an officer appointed by the Government, whose acts are just as conclusive as are the decisions of the District Court, unless they are reversed. Under the Act of 1860 he made a survey of Mahoney's land. That is a decision, and is the law of the case until it is reversed. The United States District Court alone can reverse it. And if the District Court confirms it, the Supreme Court of the United States can revise that decision.

FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring

This is an action of ejectment to recover the possession of a tract of land known by the name of the "Rancho Laguna de la Merced," situated partly in the county of San Francisco and partly in the county of San Mateo. The plaintiff deraigns his title from the former Mexican Government through a grant issued by the Governor of California to one Galindo in September, 1835. Some of the defendants rested their defense upon the inability of the plaintiff to establish a right to the possession, simply denying in their answers the allegations of the complaint; but the majority of them also set up title in themselves to specific parcels of the premises as preëmptioners under the laws of the United States, and each of them demanded a separate verdict. The Court instructed the jury to find generally in favor of two of the defendants, and to render a separate verdict against each of the other defendants, with a qualification, however, which in effect rendered the instruction one to *find generally against [576]

each of the latter defendants. The verdict rendered was substantially in conformity with the instruction. To its form objection was taken at the time, but it does not appear from the record in what particular it was urged that its form was defective. The objection as stated was too general to merit consideration.

The grant to Galindo cedes the tract known by the name of "Laguna de la Merced," and contains the usual conditions annexed to grants in colonization. It authorizes the inclosure of the land, with a reservation of the crossings, roads, and servitudes, and confers upon the grantee the free and exclusive enjoyment of the same, with a right to subject it to such use and cultivation as may suit his convenience; and requires the erection of a house thereon and its inhabitation within one year. Immediately after its receipt the grantee entered upon the premises, and within the period designated erected a nouse thereon and occupied it for nearly two years, when he sold and conveyed his interest to Francisco de Haro. The latter immediately went into possession, and resided with his family upon the premises until his death in 1848 or 1849. In 1852 the claim for the land embraced by the grant was presented by his heirs to the Board of Land Commissioners for confirmation, and by the decree of that body, and afterwards on appeal by the United States District Court, was confirmed. The decree of the latter tribunal became final by the refusal of the Government to prosecute an appeal therefrom, and by the stipulation of the District-Attorney. The validity of the grant is, therefore, a settled question for all time. (Mott v. Smith, 16 Cal. 551.)

As we have already observed, the grant is for a specific tract of land. In this respect it is distinguished from a large class of grants of mere quantity within vague and undefined boundaries, like the grant of Alvarado, under which Fremont claimed. In these latter cases it was undoubtedly the intention of the Government simply to indicate the general locality from which the quantity gronted might be selected, and not to pass the entire property within the exterior limits designated. Here the case is different. Here a specific tract, known by a particular name, is ceded, and reference is made to a map accompanying the petition of the grantee for its

*boundaries. The petition represents the tract to be [577] league in length, and a half of a league in width, more or less. A map similar to the one referred to was required by the Mexican Regulations of November, 1828, which were adopted to carry into effect the Colonization Law of August, 1824, in all cases where a grant of lands was solicited. And the grant usually followed the map or the petition in the general description of the land, and where a certain quantity was stated in the petition to be embraced within a particular tract named or within certain specified boundaries, it was customary, in order to prevent mistakes or imposition, to insert a clause reserving for the benefit of the nation any surplus which might be found upon a survey and measurement by the officers of the Government. (Ferris v. Coover, 10 Cal. 621.) Until by such a proceeding it was officially determined that within such particular tract or designated boundaries there was a surplus, and it was set apart, the right to the possession of the entire tract rested with the grantee. Until then, as we said in Cornwall v. Culver, 16 Cal. 429, "no individual can complain, much less can he be permitted to determine, in advance, that any particular locality will fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the Government, would be stripped of its bounty, for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."

To this doctrine of the right of the grantee until the official measurement, the common objection is urged that under it double or treble the quantity intended to be ceded by the Government may be possessed by him. Under a grant, it is said, of a tract supposed to embrace but one league, the grantee may, in accordance with this doctrine, recover two or more leagues, and parties equally entitled to the consideration of the Government be thus excluded from settlement upon land which will ultimately be determined to be part of the public domain. The objection thus urged is more specious than sound. If there be a surplus within the designated boundaries of the tract over the specific quantity alleged

.