I cannot agree to the construction placed by the majority of the Court upon the second section of the Van Ness Ordinance.
No estate was acquired by any one by means of the ordinance alone; but, in considering its language, it is convenient to regard the ordinance as effecting the purpose intended. That purpose, as I understand it, was to release and grant (in prcesenti), the right and claim of the city to all the classes of persons mentioned in the second section. The section begins: “The city of San Francisco hereby relinquishes and grants,” etc. Much stress has been placed on the words, “has been or may be recovered by legal process;” “may” being considered the equivalent of “shall,” and the recovery by legal process held to be a condition precedent to the vesting of the grant. But it is admitted that the rights of such persons as were in possession during the period mentioned, and of those who, having been previously ousted, had recovered the possession before the passage of the order, became fixed—so far as the city could fix them—when the ordinance ivas adopted; and the granting words equally cover those who had not recovered the possession when the ordinance was passed, but who then had the right of possession by virtue of a prior occupation.
The persons included within the last class could ordinarily acquire the enjoyment of their property only by an action for the recovery of the possession—an action which would determine the prior possession and ouster; and the words “may re'cover,” etc., are simply a declaration of what would have been the legal effect of the grant had these words been omitted. With or without the clause referred to, a proper suit was the mode of ascertaining whether the plaintiff was entitled to the benefits of the ordinance when it took effect. The right and claim of the city was transferred at the date of the ordinance; the result of the legal process, if the plaintiff should be successful, being only to identify, the grantee and place him in possession.
*291If this construction is correct, the opening statement of counsel connected the plaintiff with the pueblo title.
If the plaintiff was connected with the pueblo title, an action by him was not barred by the Statute of Limitations until July 1st, 1869. (Montgomery v. Bevans, 1 Sawyer R., 653; Henshaw v. Bissel, Sup. Ct. U. S., Oct. T. 1873.)
I express no opinion as to the other questions presented by the record.