delivered the opinion of the court. Wells, Justice, concurred.
The complainant alleges, that in September, 1849, he settled upon a tract of land, “ the same being public land of the United States,” that subsequently a foreigner, named Hogan, built a house and occupied a portion of the tract, and that now the defendant, as executor of Hogan, is offering the same for sale, and he prays an injunction and damages for the occupation.
Upon what principle his claim is based, I am at a loss to imagine. The prospective pre-emption act of Congress, of 1841, is expressly confined to the surveyed lands, and was consequently not extended to California at the time of the acts complained of.
*372The statute of this State, which protects the possession of settlers on public lands, to the extent of one hundred and sixty acres, was not passed until April, 1852, long subsequent to the commencement of this suit. Under neither of these two acts, then, can the plaintiff claim any rights. He is himself but a mere naked trespasser, by his own showing, and entitled to no relief, his own averment destroying the presumption of title which the law makes in favor of possession.
The order below is reversed, and judgment here rendered, reversing the judgment of the court below, and dismissing the complaint with costs.
October 11th, 1853, the defendant petitioned this court for a rehearing: 1st. Because the cause by consent of counsel was to have been submitted to the court on written arguments, which had not yet been submitted by either party.
2d. Because there was error in the court declaring that the statute of this State, which protects the possession of actual settlers on public lands of the United States, to the extent of 160 acres, was not passed till April, 1852, being subsequent to the commencement of this suit. As the act under which this action was brought was passed April 11, 1850, long anterior to the bringing of this suit, and is entitled “ An act prescribing the mode of maintaining and defending possessory actions, on lands belonging to the United States,” under which plaintiff shows that he has a good cause of action, and that on reference thereto the decision of this case will be found erroneous,, and therefore prays a rehearing.
After the rehearing, the following opinion was delivered by Heydeneelpt, Justice, with which Wells, Justice, concurred.
In the petition for rehearing, the plaintiff claims that his suit was commenced under the act of 1850, prescribing the mode of maintaining possessory actions on public lands of the United States.
His action, however, is not a possessory action, as, instead of showing that his possession is invaded, his complaint shows no one but himself to be in possession.
The prayer is twofold: first, to prevent an executor’s sale, for fear, we suppose, of its imposing a cloud on his title, which cannot be done, because he has no title.
*373Second, to recover rents and profits for the use and occupation of the land by the deceased,-Hogan ; but this cannot be done, because the right to recover for use and occupation is founded alone on contract; whereas the declaration shows that the deceased was a trespasser, and if so, the trespass died with him. And again, no such right is given by the statute which is invoked.
The petition is denied.