This case was here on a former appeal, and is reported in 28 Cal. 605. On that appeal the judgment was reversed and the cause remanded for a new trial. The legal propositions which arose and were decided on the former appeal, whether they were correctly decided or not, have become the law of the case, so far as they were applicable to the facts developed on the second trial. There would be no end to the litigation, if the same questions in the case once decided by the appellate Court were open to examination on every succeeding appeal. _ It has been so often decided by this Court that on a second appeal we will not re-examine the legal propositions decided on the first, as to render the citation of authorities unnecessary. It becomes material, therefore, to ascertain with precision what legal propositions were decided on the former appeal, in order that we may apply them to.the facts on the last trial.
The action is replevin for a quantity of hay, which was cut by the defendants on the Suscol Rancho in May, 1863. This rancho was claimed by M, G-. Vallejo, under a grant *106from, the Mexican Government; and in 1851 he sold and conveyed a portion of it to the plaintiff, who, in 1860, • inclosed the portion so purchased with a substantial fence, and used and occupied the land for cultivation and pasturage. In the Spring of 1862, Vallejo’s title under the Mexican grant was finally rejected by the Supreme Court of the United States, and in the Autumn of that year the defendants entered upon the premises, then in possession of the plaintiff, with the intention to pre-empt as soon as the lands were in a condition to be pre-empted each for himself a tract of one hundred and sixty acres. Each of the defendants selected a tract of that extent, caused it to be surveyed, and erected-a shanty or small house on it, which house the defendants severally occupied. On the 3d March, 1863, Congress passed a special Act, entitling the purchasers under Vallejo to preempt at the minimum price the lands so purchased, and authorizing the extension of the United States surveys over the rancho, so as to enable the purchasers to perfect their pre-emptions. The hay in contest was cut by the defendants in May, 1863, from the lands so surveyed by them with a view to their pre-emption as soon as the Government surveys should be extended over them. But notwithstanding the entry of the defendants, the inclosure of the plaintiff remained undisturbed, and his possession, up to the time the hay was cut and afterwards, continued as it was before the entry of the defendants, except in so far as it was interrupted or impaired by the aforesaid acts of the defendants. After this action was commenced the public surveys were extended over the lands; and the plaintiff’, in accordance with the special Act of March 3d, 1863, applied to the proper Land Office to pre-empt the tract purchased from Vallejo. The defendants resisted his application, and themselves applied to pre-empt the tracts severally claimed-by them, under the general pre-emption laws. The Register and Receiver awarded- the land to the plaintiff.
It must be conceded that when the defendants entered, the land in question, though inclosed by the plaintiff and in his *107possession, was a part of the public domain.. When the title of Vallejo was finally rejected, the land was thenceforth to be deemed and treated as public land, to the same extent and with like-effect as if it had never been claimed under a Mexican or Spanish grant. It is not denied on either side that the title was then in the United States; and on both trials it was sufficiently established that the defendants entered with the intention to pre-empt-the tracts severally claimed by them as soon as the lands were in a condition to be pre-empted under the laws then in force.
The precise point before the Court on the former appeal was founded, on a ruling of the District Court upon a question of evidence. After the plaintiff rested, the defendants offered to prove that each of them possessed the qualifications requisite to entitle him to become a pre-emptor, and had filed his declaratory statement of intention to pre-empt the quarter section on which he entered and had resided since October, 1862; and that they had procured their several tracts to be surveyed by the United States Surveyor General. The Court below ruled out this evidence, and the only point decided on the appeal was that the-ruling was erroneous and that the evidence should have been admitted. We held the evidence to be admissible on the ground that, “conceding to the plaintiff the benefit of his prior possession, and regarding him as engaged in perfecting his claim to the pre-emption, the evidence offered by the defendants to prove that they were taking the necessary steps to establish their claim to the pre-emptions was clearly admissible and competent, in connection with proof of their entry in October, 1862, and actual possession of the premises up to the time when the hay was cut in 1863, to show that during that period they were in adverse possession of the premises.”
Proof of adverse possession by the defendants of the land at the time the hay was cut was held to be material and pertinent, on the ground-announced in Halleck v. Mixer, 16 Cal. 579, that “the plaintiff" out of possession cannot sue for property severed from the freehold when the defendant is in *108possession of the premises from which the property was severed, holding them adversely, in good faith, under claim and color of title;” and we held that if the defendants entered and had actual possession of the premises, with the intention in good faith to pre-empt the same, under the circumstances which they offered to prove, such possession was adverse, under claim and color of title, within the reason of the rule laid down in Halleck v. Mixer. We say: “The rule when stated as applicable to cases where the title is outstanding in the United States, is, that the personal action cannot be made the means of litigating and determining the right to the possession of real property, as between' conflicting' claimants. The mere trespasser, who casually or temporarily enters for the purpose of severing or removing property attached to and forming a part of the realty, cannot invoice’ the rule, for he does not'hold the adverse possession. The. case of a defendant who has entered upon the public land then in the plaintiff’s possession', claiming in good faith the right to pre-empt the same, and who is proceeding according to the forms of law to perfect and enforce his right of preemption is clearly within the reason of the rule laid down in Halleck v. Mixer; for, although he does not claim title, he claims all the right that can be held in the land consistent with the fact of title' in the United States; and, as we have remarked, the title cannot be made use of by either party for attack or defense.” The legal propositions decided on that appeal may, therefore, be summed up as follows, to wit: that if the land from which the hay was cut was public land, which had been in the possession of the plaintiff up to the' time of the entry of the defendants, and if the defendants, being qualified pre-emptors, entered into the actual possession, with the intention in good-faith to.pre-empt the same, and'were proceeding according to the forms of law to perfect and enforce their right of pre-emption, their possession was adverse under claim and color of title, in such sense as to preclude the plaintiff' from maintaining a personal action for the hay cut by the defendants from the lands so in their *109adverse possession; and this, too, notwithstanding the plaintiff may have been proceeding to perfect his right to pre-empt the land under the special Act of March 3d, 1863. On that appeal no question was raised or decided as to the fact of the actual possession by the defendants of the land from which the hay was cut. We assumed it as cither proved or admitted for the purpose of the appeal, that the defendants from the time of their entry, “ resided on and had possession of the land; ” and we neither expressed nor intimated an opinion on the "point whether an entry on a part of the land, under the conditions stated, gave them a sufficient possession of the whole to bring them within the rule which we announced. It was, therefore, a legitimate and pertinent subject of inquiry on the second trial, whether the defendants, when the hay was cut, had the possession, either actual or constructive, of the premises on which it grew. If they had no possession, it is evident,.beyond cavil, that their case does not come within the rule announced in Halleck v. Mixer, and in this case on the former appeal. To bring them within the rule, it was incumbent on the defendants to establish, on the second trial, that they had the possession of the premises on which the hay grew at the time it was cut. It was admitted “that there was no contest in the case as to the sufficiency .of the fence to constitute possession in the plaintiff up to the year 1862, at the time of defendants’ entry.” The prior possession thus admitted was sufficient to enable the plaintiff to maintain the action, unless the defendants brought themselves within the rule announced in our former decision. To do this, it was incumbent on them to prove—unless the fact was admitted—that they had the possession of the land on which the hay grew; and they gave some evidence tending to establish this fact. Stuart, a witness for the plaintiff, testified that the defendants Knight, Overman, Tilton, Packwood, and Robinson “were in possession of the land on which the hay was cut from October previous up to and at the time the hay was cut. No one was in possession except them, so far as I know; they "all went *110in as pre-emptors.” There was some other evidence of similar import. On the other hand, the plaintiff* claims to have established that his prior possession continued undisturbed, except as to certain small parcels covered by the buildings and included within certain inconsiderable inclosures of the defendants, none of which embraced the land on which the hay was cut. It was, therefore, a legitimate subject of inquiry by the jury whether or not the defendants had established such a possession as was necessary to defeat the action; and on this point the plaintiff* was entitled to have the law expounded by the Court in its charge to the jury. At the instance of the plaintiff, the Court charged the jury as follows:'
“If the jury believe from the evidence that plaintiff had the prior actual possession of the lands upon which the hay grow ever since 1860 up to the time that defendants entered, and that he had up to that time subjected said promises to his rule and control, and that defendants then entered into said premises, such entry did not of itself divest the possession of the plaintiff necessarily, any further or to any greater extent than the defendants actually occupied the same; and if they only occupied one or more parts of said premises, then it would not divest the plaintiff of his prior possession of the portions not actually occupied by defendants; and if defendants, being in actual occupation of only a specific part or parcel of the general tract, entered into other parts thereof and cut the hay only thereon, this would not be such a divesting of the possession of plaintiff as would prevent the plaintiff from recovering in this action.”
This was a correct exposition of the law, and stated the legal proposition as strongly in favor of the plaintiff as he could reasonably have desired. The plaintiff also asked several other instructions, which were properly refused by the Court. The first may well have been refused on the ground that there was no evidence to support it, and that it *111was calculated to mislead and confuse the jury. The second was substantially embraced in the instruction which was given, and its refusal could not have prejudiced the plaintiff. The same remark applies to so much of the third instruction which was refused as relates to the prior possession of the plaintiff and the entry of the defendants on other portions of the general tract. That part of it which assumes that the defendants were not entitled to become pre-emptioners was properly refused as irrelevant. That question could not bo tried in this collateral action. It is not material whether, in point of fact, they were qualified pre-emptors or not, provided they entered believing in good faith that they wore entitled to pre-empt the land, and entered for that purpose.
But some of the instructions, given at the instance of the defendants, and excepted to by the plaintiff, were erroneous.
The first, which declares that “the plaintiff having exhibited his deed from Vallejo, shows his title comes from him, and his title being decided invalid by the Supreme Court of the United States, is evidence against his title, and overcomes the prima facie evidence of title shown by possession,” is not only so awkwardly worded as to render it obscure, but, if we interpret it aright, does not correctly state the law. It is so well settled by repeated decisions of this Court that a party in the actual possession of public land, to which he has no title, is to be deemed the owner, as against mere intruders or trespassers entering without title or color of title, that it is no longer open to discussion. The fact that the plaintiff held a deed from Vallejo for the land could not place him in a worse position than if he had been there wholly without title except such as flows from the mere naked possession of public land; which, as we have seen, is sufficient to support an action against a mere trespasser. To overcome this right of action, founded on actual possession alone, it was incumbent on the defendants to show that they were not mere trespassers, but that they entered in good faith as pre-emptors, and as such took possession of the land on which the hay grew. This instruction, how*112ever, informs the jury that because the plaintiff held the* deed from Vallejo, whose title has proved to be invalid, his prima facie evidence of title, shown by his possession, is overcome. If the jury acted on this, as a correct exposition of the law, they were obliged to conclude that the plaintiff had no standing in Court, notwithstanding he was in the actual occupation of the land when the defendants entered. From this it would follow, as a necessary sequence, that it was immaterial whether the defendants entered as mere trespassers or in good faith as pre-emptors. The plaintiff' would have no action against them in either event, if this instruction be accepted as sound law. It is urged, however, on behalf of the defendants, that this instruction, if erroneous, was harmless, and did the plaintiff no injury, for the reason that the question of title was not involved and could not be tried in this action. If it be conceded that, strictly speaking, the title to the land was not involved, the instruction was, nevertheless, eminently calculated to mislead the jury and to direct their inquiry into a wrong channel. The next instruction is equally erroneous. It informs the jury that “cutting the grass is itself evidence of possession of the land on which it grew—a possessio pedis.” The cutting of the grass is the precise act which is complained of as a trespass, and to hold that the act which is alleged to be unlawful is itself proof that it is not unlawful, is to state a legal solecism. By the same process of reasoning, if a burglar be found entering a window, he might cite the fact of his entry as proof of his right to enter. In every action for trespass on real estate, the defendant might rely on the act of trespass as proof that it was not a trespass.
We deem it unnecessary to discuss the other instructions given at the instance of the defendants, some of which are by no means free from objection. For the guidance of the Court and counsel on another trial, we may remark that as the case stands on the facts now presented, the plaintiff, by virtue of his prior, actual possession of the land, will be entitled to recover, unless the defendants prove that they *113entered in good faith with the intention to pre-empt the land on which the hay was cut, and had the actual possession of it at the time; on proof of which facts the verdict and judgment should be for the defendants.
Judgment reversed and cause remanded for'a new trial, and remittitur directed to issue forthwith.