*304By the Court,
Bennett, J.The action is brought to recover possession of a lot of land in San Francisco. At the commencement of the suit the defendants were in the actual possession of the premises, having entered without force, fraud, or any clandestine means, and claiming to be bona fide occupants of the** same under a written conveyance to them. When they took possession there were no visible signs that the lot had ever been improved, or cultivated, or occupied by any one. Some survey stakes had been driven at the corners of the large one hundred vara tract of which the lot in question is a subdivision, and some brush had been cut thereon, apparently for the use of tents in the vicinity. The land, in fact, was in a wild state. The defendants had the subdivision lot, which they occupy, surveyed, and have made valuable improvements upon it.
In June, 1848, the plaintiff claiming to be the owner of the one hundred vara lot, went upon it “ to take possession,” drove some stakes at the corners, and cleared away the brush for a dwelling on some portion of it, but what portion does not appear. There are no other acts, either at that time or since, showing possession on his part. It appears, however, that there was once, but at what period is not shown, a fence extending along the south side of Market-street, from the one hundred vara lot lying next westerly of the one claimed by the plaintiff, as far as the bay on the east, and that there were several cross fences extending from that fence southerly. When, or by whom, either of these fences was built does not appear; but there is not the slightest reason to suppose that the plaintiff, or those under whom he claims, had any thing to do with the construction of either of them. Before the entry of the defendants, all these fences had been destroyed, for the purpose, as is supposed, of supplying people who lived in tents in the neighborhood, with fuel. The above is the substance of the facts necessarily deducidle from the testimony.
The claim of the plaintiff is based upon two grounds : First, that he has a perfect title to the lot; and, secondly, that he was once in possession of it.
To maintain his first position he relies solely upon a grant *305from an alcalde of San Francisco, Rearing date the 15th day of April, 1847. This grant was made hy an American alcalde, not appointed by, nor holding office under, the authority of the Mexican government, to a citizen of the United States, during the continuance of the war between the United States and Mexico, whilst California was in the temporary occupation of the American forces, and before the title of the United States to the country had become complete. In other words, an inferior local officer, holding his place under the authority of a hostile army, while in the occupation of a portion of conquered territory, assumes the right and the power to dispose of the real estate of the vanquished to a citizen of the victorious country. The question is, whether ho has such right or power ? If he has, whence does he derive it ? It must proceed from one of two sources ; either from the Mexican government, or from the American government.
The bare statement of the fact, that he was not appointed by, nor held his office under, the authority of the Mexican Republic, but was an alien enemy acting in defiance of her sovereignty, is sufficient proof that, however strictly he may, in making the grant, have observed the formalities of Mexican law, he could have derived from that nation, neither right nor power to transfer the title to any portion of individual or public property. Had California, at the treaty of peace, been restored to Mexico, no man can entertain the idea, that the Mexican government, or the Mexican judiciary, proceeding upon their own municipal law, or upon the principles of international justice, would have regarded such a conveyance otherwise than as of no value or effect. The alcalde could, then, have derived no such power from the Mexican government.
Ueither was he invested with any such authority by the American government, either mediately or immediately, directly or remotely. Conceding that he was an officer of the United States, there was yet no legislation by Congress, no action of the President or of either of the departments, not even a proclamation of commodore or general, which has come under my observation, which attempted to clothe him with the power of *306disposing of the national domain of Mexico, or the private property of individuals or communities. There being, then, no special and express authority from the government of the United States, such authority must be deduced, if at all, from the law of nations, which, as it is apart of the laws of all civilized countries, forms also a branch of American jurisprudence.
By international law private rights are unaffected by conquest. (Wheaton's International Law, 396, Part 4, chap. 2, sec. 5.) The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. (Vattel, Boole 3, chap. 13, sec. 200.) Nor can it make any difference whether the property belonged to a natural person, or to an artificial person. Tested-rights in real estate have been respected by all civilized nations ever since the time of the conquest of England by William of Normandy. (Wheaton, 396, ubi supra) It is claimed that San Francisco, as the lawful successor of Yerba Buena, was what is termed in Spanish law, a pueblo ; and that being such, there was in some undefined manner, and under some vague system of things, vested in the people of the pueblo, or in the alcalde, or justice of the peace, or ayuntamiento, as representatives of the pobladores, an absolute title to a large tract of land, the limits of which have never, as yet, been ascertained farther than the city surveyor has been directed to run the lines of city lots. Whence or how that title was acquired, was not attempted to be explained on the argument; and I am not aware of any legislation, general or special, of Spain or Mexico, which vested the pueblo of Yerba Buena, or the town or city of San Francisco, with the title to a foot of land within their assumed boundaries. If, however, I am mistaken in this, and there was such vested title, the al-calde, an alien enemy of Mexico, and without authority from the American government, had no power or right to interfere with that vested estate.
There is also another difficulty in the plaintiff’s case, in making out the power of the alcalde of San Francisco to grant lands, by virtue of his office; that is, it does not appear that San Francisco or Yerba Buena, was ever constituted a pueblo, or had *307the rights of one; a fact, which, I think, should be established by proof, and of which courts cannot, and ought not to, take judicial notice ; and, further, even admitting that it was a pueblo, there is still nothing in this case showing the boundaries of the pueblo, or that the lot in controversy lies within those boundaries.
Upon the ground, then, that the lot in question had, previous to the occupation of the country by the Americans, been sevei'ed from the mass of the public lands of the country, there is nothing to uphold the right of the alcalde to dispose of it.
I am, however, of the opinion that, even though San Francisco had become a pueblo previous to the conquest, and had been invested with all the rights incident to such character, the lands within its limits still continued a portion of the public domain. The full and absolute title of the nation to lands within the limits of pueblos, other than such as were, in limited quantities, expressly granted to the pueblo for the purpose of defraying certain expenses incidental to the administration of the local government, does not seern, in any case, so far as I have been able to ascertain, to have been divested or in the least impaired. It is true that to certain officers was committed the authority of parcelling out pueblo lands, subject to specific rules and restrictions imposed by law; but such officers appear to have acted rather as almoners of the supreme government in dispensing its bounty, than as agents of the pueblos in disposing of property, the title to which they held as municipal bodies. The United States, by the conquest of California, acquired an inchoate and imperfect title to all of the national domain of Mexico situated in that territory, which title was perfected by the treaty of peace. (Wheaton's International Law, pp. 208, 396, 440, ed. 1846; Vattel, 386.) The title of the United States relates back to the time of the occupation of the country ; and, consequently, all law's of Mexico concerning the disposition of public lands must have ceased the moment California was effectually subdued and occupied by the American forces ; and neither Mexican nor American officers had any power, under the previously existing laws, or under any laws of the United States, to grant, *308sell, or in any way dispose of any portion of the national domain, which had thus been transferred from the sovereignty of Mexico to the sovereignty of the United States.
For the above reasons I think the title of the plaintiff of no validity. The Alcalde having no power to convey—it appearing on the face of the papers that he made the deed by color of his office—and the plaintiff being chargeable with knowledge of these facts, his title is not even colorable. (Suñol v. Hepburn, ante, p. 254.)
The remaining question for consideration relates to the possession of the plaintiff. It does not distinctly appear at what time the defendants entered upon the lot in controversy ; but the case must be controlled by Mexican law, and I am of the opinion that it comes within the principle of Suñol v. Hepburn, decided at this term, and that the plaintiff cannot maintain a possessory action. The question to which I shall briefly advert, is -whether ejectment can be maintained under the principles of the common law.
The defendant entered peaceably and quietly upon land which bore no marks of being in the occupation of any one. He entered with a claim of title under a written conveyance. He did not intrude upon the known possession of another by force, fraud, artifice, or by any secret or clandestine means ; for aught that appears he took possession in perfect good faith. Under these circumstances, he may justly claim all the privileges, which, in an action of ejectment, are conceded to a defendant in actual possession. Mr. Chitty, in a note to Blackstone's Commentaries, (vol. 2, p. 196, note 1,) thus sums up the principles by which this form of action is governed :—“ In general a “ person in actual possession of real property cannot be ousted “ unless the party claiming can establish some well founded “ title, for it is a general rule, governing in all actions of ejeet- “ meet, (the proper proceeding to recover possession of an “ estate,) that the plaintiff must recover on the strength of his “ own title, and of course he cannot in general found his claim “ upon the insufficiency of the defendant’s. For possession “ gives the defendant a right against every person who cannot *309“ show a sufficient title, and the party who would change the “ possession must therefore establish a perfect title; and this “ rule it is said prevails even where a stranger who has no “ color of title, should evict a person who has been in possession “ short of twenty years, but who has not a strict legal title; “ but according to Allan v. Rivington, (2 Saund. 111, a. and 6 “ Taunt. 548, n,) a prior occupancy is a sufficient title against “ a wrongdoer; but it is observed in a note to the first case, “ that this is contrary to the general -use, and it is suggested “ that there is a mistake in terms.” This is a succinct statement of the established principles of law applicable to the action of ejectment, and it appears from this and from the adjudicated eases cited by him, to be at the least doubtful, whether, at common law, an action of ejectment can, in any case, be supported upon the sole ground of prior possession, where such possession has not been continued for twenty years, nor been invaded by force or surprise. There are however some cases in American reports, which apparently seem to sanction such a doctrine. Such are the cases of Jackson ex dem. Murray & Brown v. Hazen, 2 J. R. 22; Jackson ex dem. Murray et al. v. Dean, 5 Cow. Rep. 200; Smith v. Lorillard, 10 J. R. 338; and Jackson ex dem. Duncan v. Harder, 4 J. R. 203. Whether these cases are, in truth, a departure from the common law rales of ejectment, it is difficult to say, owing to the meagre statement of facts embraced in the reports of them; and so far as the case at bar is concerned, it is a matter of no especial moment, for they assume as an established fact the very point here controverted, that is, the prior possession. It may however be remarked, that if they can be sustained upon any common law principle, it must be upon the ground that, possession being prima facie evidence of title, and there being no other evidence rebutting such prima facie evidence, the law will presume that one, who has been in the actual possession of premises, was the legal owner. But this is a mere presumption, which may be disproved by the defendant; why then should the plaintiff be permitted to recover, when he himself, by his own proof, rebuts this legal presumption? Thus in the case *310before us, liad the plaintiff, at the trial, proved himself to have been in the actual possession of the lot in question, the law would presume him to have been the owner ; but when he adduces his title, which entirely overcomes the legal presumption of ownership, it is questionable whether on the common law principles of ejectment, he is entitled to recover. The defendant in ejectment may prove title out of the plaintiff—he may-show it in himself or in a stranger, and thus bar the plaintiff’s recovery ; and it would be a little strange, if a fact, which, set up by the defendant, would avoid a recovery, should, when brought forward by the plaintiff', establish his cause of action. It is hardly probable that the common law ever tolerated such an absurdity.
But it is, perhaps, unnecessary to have considered this branch of the case at such length; for the fact, upon which the cases above cited from Johnson proceeded, is wanting in this case. The plaintiff’ never was in the actual possession of this lot. Some cases have gone great lengths in holding slight acts to be sufficient evidence of possession ; but I know of no case, which has gone so far as to sanction the position contended for by the plaintiff. When the plaintiff' seeks to recover upon the sole ground of prior possession, a clear and unequivocal possession should be proved. (Jackson ex dem. Ludlow v. Myers, 3 J. R. 387.) In Jackson v. Schoonmaker, (2 J. R. 230,) it was held that a possession fence, made by felling trees and lapping them one upon another round the land, was insufficient to support an adverse possession. “ This mode of taking possession,” says Kent, Ch, J., in that case, “ is too loose and equivocal. There “ must be a real and substantial inelosure, an actual occu- “ pancv, a pjossessio pcedis, which is definite, positive and noto- “ rio us, to constitute an adverse possession, when that is the “ only defense, and is to countervail a legal title.” If that was an insufficient possession to sustain a defense of adverse possession, much more would it have been insufficient to sustain an action, and in that case the foots to constitute possession were at least as strong as they are in the present case. The case of Jackson v. Schoonmaker, (4 J. R. 390,) is of a similar character *311to the case last cited. In this case also the lapping of trees to form a fence for the purpose of taking possession was held to be insufficient. In both of the cases last cited, the defendants went upon the land for the purpose of taking possession, and, while upon it, they performed acts much more indicative of the fact of taking and holding possession than were the acts of the plaintiff in this case. I think that his acts were too loose and equivocal to support a claim of possession. There was no real and substantial inclosure, no actual occupancy, no possessio pedis, definite, positive and notorious, of which Kent speaks as being necessary to enable a party to make out a title by possession.
It would, indeed, be an unfortunate state of things, if a person in the actual possession of land, having entered without violence and in good faith and under a title, which to say the least is equally good with that under which his adversary claims, could, after having made valuable improvements on the premises, be thrust out of possession upon such loose and indefinite acts as are those upon which the plaintiff relies. Were that so, then indeed would there be no security to the possessions, of most of the people of the city of San Francisco. Any man would be liable to be deprived not only of the land which he possesses in good faith, but also of dwelling-houses, stores, buildings, and other substantial improvements, which he may have erected at enormous expense. -Nay, the plaintiff himself, if put into possession, would not be secure; for, upon the same ground on which he should recover, the person who built the fence along the line of this lot, might come forward and claim that he also was in possession prior to the plaintiff, and oust him also ; and thus, a series of suits brought against persons in possession having no title, by persons' out of possession having no title, might be prosecuted and sustained indefinitely, and the whole community thereby set afloat upon a sea of uncertainty, confusion and litigation which would have no bounds. As for myself so far as I legally may, I am determined to protect the actual possessor, until some person can oust him by virtue of superior title. This is reasonable; this is common law; and *312it is indispensably necessary that the rule should be applied and enforced in the existing condition of things in this state. My opinion is that the judgment should be reversed with costs.
Ordered accordingly,