Field C. J. and Cope, J. concurring.
Ejectment for the United States Marine Hospital. It is not important, in the view which we have taken of this case, to consider whether the deed of Brenham, as Mayor of San Francisco, conveyed to the United States the title of the property sued for. It may safely be conceded, as possibly the truth is, that the city authorities had not power to convey any portion of the real estate *523of the corporation by way of gift. But it seems to be conceded —and the concession is necessary to the maintenance of the plaintiff’s case—that the title to this property at the time of the passage of the Van Ress Ordinance was in the city. Row, whether the city authorities had power to make a gift of this property or not, it is certain that they had full power to control it, and to place it in the keeping of any person; in other words, they might permit any person to enter and hold the property at their discretion; and this license is sufficient to protect the holder’s possession against any third person’s claim. If this deed from Brenham, made in pursuance of the action' of the Common Council, was not effectual for any other purpose, it was effectual as a license. The city, having authority to make actual entry itself, could equally empower the United States as its agent to enter; and it is not material, in this aspect of the case, whether the possession of the plaintiff or his predecessor had been disturbed before this time or not. If the property was in such a condition that the city might have assumed the actual possession, as unquestionably it was, she having the legal seizin might, at the time of the deed, have given to the United States the right to enter upon the premises; and she did give that right, whatever the effect otherwise of the deed of the Mayor. By and upon the passage of the Ordinance -of 1855, and the confirmatory Act of 1858, the United States, holding under the city and having actual possession, would be entitled at least to claim protection against the antecedent possession of the plaintiff or his predecessor. It is not necessary to decide that the United States have title against tfie city. If the Government holds under the city, by contract or written consent of the city, and has no title by virtue of the deed referred to, or the ordinance, the possession may be regarded as the possession of the city; but this is sufficient as against the plaintiff’s claim. The Van Ress Ordinance in the proviso quoted —“ Provided, such possession has been continued up to the time of the introduction of the ordinance; or, if interrupted by an intruder or trespasser, has been or may be recovered by legal process ”—has no such application in favor of the plaintiff as he contends. The effect of this proviso is only to determine the right under the ordinance as between the actual possessor and a former possessor whom *524the first had deforced. It has no application to the case of the city resuming possession of her own property, or what is the same thing, a possession held by her license and permission. It would scarcely be contended that if the Plaza had been taken possession of by a trespasser, and he had been put off by a subsequent possessor, and the city had afterward entered or got possession, that she must yield to the first possessor. The city was, at the time of the passage of the Van Ness Ordinance, in construction of law, in possession of this property by her tenant at will—if the United States got no title —and if the ordinance did not operate in favor of the United States, (a point we do not decide) certainly it does not operate to exclude her from her just rights, and to deny her the benefit of her present lawful possession of her own, from the mere fact that a long while before some one else was in unlawful possession of her property, and was put out unlawfully by a succeeding trespasser having no better title.
We have purposely waived a decision upon the question of the title of the United States, either under the deed or the Van Ness Ordinance, for the reason that the city is not a party to the record, and it is not necessary to a final disposition of the plaintiff’s claim
• to pass upon the questions.
Judgment affirmed.
S. W. Inge, for appellants, filed a petition for rehearing, insisting: First, that the Court had decided the case upon the point that the deed of Brenham, as Mayor of San Francisco, to the United States was at least a "license to occupy;" that this point was'not presented by the pleadings, and was not argued by counsel, and that this Court •should only consider errors raised by special exceptions. Second, that, by the Act of May 1st, 1851, (Stat. 1851, 390) all the right, title and interest in and control over the property in controversy was divested from the corporate authorities and vested in the Commissioners of the Funded Debt, and that this was the only point discussed, and the point upon which the case was decided below ; that, if the title passed by the Act of 1851 to the Fund Commissioners, then all power over the property was taken from the corporate authorities, and they could not “ license to occupy,” *525or exercise any control whatever, as this would conflict with the exclusive right of the Commissioners. Third, that the legal title remained in the Commissioners of the Funded Debt, with exclusive control, until the Act of 1858, confirming the Van Ness Ordinance ; and that this ordinance granted the property to the possessors named therein, whether the legal title was in the city authorities or in the Commissioners; that the Mayor and Aldermen were mere agents or trustees, subject to the control of the Legislature, which could abolish the corporation and destroy their existence, or modify their powers, at its discretion, or place the management and control of the municipal lands in the hands of other trustees, as was done by the Act of May, 1851; that the Commissioners created by this act were also under the control of the Legislature, and were mere trustees to hold and manage and dispose of the lands of the city; that the Legislature could and did, by the confirmatory Act of 1858, divest the title of these Commissioners in favor of the possessors named in the ordinance; that no other than the sovereign power of the State could divest the title of the Commissioners, and hence that the attempt of Brenham to make a deed was void and inoperative for any purpose; that the leading object of the Act of May, 1851, was to prevent any such exercise of power by the city authorities; that the vendors of the plaintiffs were never trespassers, but were in possession first under the city, and with its tacit consent until May, 1851, and after that time under the Commissioners of the Funded Debt, and are now entitled as grantees under the confirmatory Act of 1858.
Upon this petition, Baldwin, J. delivered the opinion of the Court Court—Cope, Cope, J. concurring.
Petition for rehearing. In this case, the point decided by this Court, in its opinion, distinctly arose upon the facts. It is immaterial whether the point was taken in the argument or not, as the Court is bound to decide according to the law of the whole case, and not according to the views or reasoning of counsel. Indeed, in the case of San Francisco v. Beideman, (17 Cal. 444) we took the same ground as that in the opinion here. We do not see how the plaintiff can avail himself of the position that the Act of *5261851 transferred this property to the Commissioners of the Funded Debt; for if this were true, the title would be in the Commissioners, and the plaintiff could not maintain his action; since, even if the Legislature had the power to divest this title by the act confirming the Van Ness Ordinance, that ordinance and the Act of 1858 only profess to give the occupants the right, title and interest of the city in the land so held.
But this deed to the Commissioners for the payment of the city debts would seem, upon general principles, to be a conveyance in trust for the purposes for which it was executed, leaving the residuary interest, after satisfying or discharging the trust, in the city; and it would seem that, subject to this right of the Commissioners —supposing it to exist—the city could still, without objection from third persons, control the subject of the trust. But it is clear that the plaintiff, claiming through the Van Ness Ordinance the right and title of the city, is not in a position to dispute that the city had, at the time of the passage of the ordinance; no title or claim to the premises.
Rehearing denied.