1. Aside from the effect of the Statute of Limitations, the . verdict for the defendant cannot be supported.
The first specification of the grounds of the motion for a new trial is that “ the evidence was insufficient to justify the verdict in this: that the title to the land in controversy . vested in Henry Hancock in 1855, and since then by proper mesne conveyances vested and is now in the plaintiff in this action. There is no evidence to show that the title has ever been in the defendant.” The premises were confirmed to the city of Los Angeles by the Board of United States Land Commissioners in 1856, and the decree of confirmation became final in 1858 by the dismissal of the appeal taken by the Government to the District Court of the United States. The title of the plaintiffs is derived from the city of Los Angeles through Hancock, who received a conveyance thereof from the city in 1855.
No question is made as to the validity of the deed to Hancock, nor is it denied that the title óf the latter, derived from the city, is vested in the plaintiffs. The only title claimed by the defendant, irrespective of such title as he asserts by reason of the alleged adverse possession by his intestate for the statutory period, is derived through a conveyance made to him by the city in 1861, some six years subsequently to the making of the deed by the city to Hancock, the grantor of the plaintiff. There is not the slightest conflict in the evidence in these respects, and unless the verdict of the jury can be supported upon the supposed title of the defendant’s intestate arising upon his adverse possession of the premises, a new trial should have been granted.
2. It is clear, however, that the adverse possession of the intestate of the defendant did not constitute a defense to *60the action. The question of the sufficiency of the evidence in this respect is presented by the latter clause of the specification of grounds of the motion for a new trial, which has already been cited: “ There is no evidence to show that the title ever has been in the defendant.” It is settled in this Court that the adverse possession of the defendant in an action of ejectment, if continued for the statutory period, creates a title in him to the lands so possessed, and under this specification it will be intended that the record contains all the evidence to establish a title in the defendant’s intestate by reason of his adverse possession of the premises sued for.
As observed already, no such an adverse possession as would create a title in the intestate of the defendant was shown at the trial. Irrespective of the effect of the provisions of the act of Congress of June 14, 1860, referred to by counsel on the argument, it will scarcely be claimed that there was. The title of the plaintiff, being one derived from the Mexican Government and being shown to have been pending for confirmation before the tribunals of the United States in 1858, was protected from the operation of the Statute of Limitations of the State by the amendment of the sixth section of that statute, passed in 1855. In this view, it having been shown that no patent had been issued to the city by the United States, the plaintiffs had the whole period of time allowed by the act of 1863; that is, the period of five years from and after the 18th day of April, 1863, in which to commence their action, and they commenced it on the 16th day of April, 1868. Recurring now to the act of Congress of June 14, 1860, with a view to consider what effect, if any, it had upon the rights of the plaintiffs here, it must be taken that, after the passage of that act, the judicial approval of a survey pursuant to its provisions, was a “final confirmation" of the title within the intent of the sixth section of the act- of this State, defining the time for commencing civil actions, as amended in 1855. It has been repeatedly and uniformly held so in this Court for more than ten years last past, and cannot now be considered open to discussion.
*61The statute of 1863, following upon and in support of the construction thus put by this Court upon the amended act of 1855, expressly enacted that the final confirmation mentioned in the second and third provisos in the sixth section of the act of 1863 should be either “the patent issued by the Government of the United States, or the final determination of the official survey ” under the provisions of the act of Congress of June 14, 1860. These provisos constitute exceptions to the otherwise general operation of the act of 1863, and it has been uniformly held here that a party claiming to be within the benefit of the exceptions must affirmatively establish his case in that respect; and this, too, must be considered as no longer an open question in this Court.
It was directly proven upon the part of the plaintiffs that their title had been confirmed by the Board of the United States Land Commissioners in 1856, and that the decree of confirmation became final in 1858, by reason of the abandonment of the appeal by the Government; and it was also proven, in substance, that no patent had ever been issued upon such confirmation. We do not overlook the fact (italicized in the brief of the defendant’s counsel), that the proof as to the non-issuance of the patent was only ‘ ‘ that so far as the present mayor of said city knows,” no patent had been issued; but we consider that the want of such knowledge upon the part of the chief executive officer of the city, when it was his official duty td know it, if the event had transpired, sufficiently establishes at least prima facie that no patent had in fact been issued by the Government. And we think, too, that the facts proven by the plaintiffs, as to the confirmation of their title, presumptively, at least, established the further fact that the official survey of the lands confirmed to the city of Los Angeles had never been finally determined under the act of Congress of June 14, 1860. The confirmation of the title of the city, as proven by the plaintiffs, was obtained from the Board of United States Land Commissioners and not from the District Court of the United States; the duty to make final survey of the lands confirmed to the city, therefore, was cast by law upon the Surveyor-General, acting in subordination to his superiors in the Executive de*62partment of the Government, and not subject to the direction or control of the District Court of the United States.
It should be remembered that by the provisions of the act of Congress of June 14, 1860, the District Court of the United States was not vested with general jurisdiction to adjudicate surveys made by the Surveyor-General of the United States. The jurisdiction in this respect was confined to cases in which a final decree of confirmation of title had been entered in the District Court, and did not embrace cases, such as the one now under consideration, in which the final decree was that of the Board of United States Land Commissioners. It had no jurisdiction to examine or adjudicate surveys in cases of the latter class, save in the exceptional instances in which surveys had already been returned into court, and remained pending there at the time of the passage of the act. We lately had occasion to examine this question in the case of Sabichi v. Aguilar (43 Cal. 285), where the decisions on this point are referred to and this conclusion reached.
Presumptively, then, the adjudication of this survey of the lands confirmed to the city of Los Angeles, by the decree of the Board of Commissioners, was not within the rightful jurisdiction of the District Court of the United States, under the provisions of the act of Congress referred to. It could' only be held to be so by showing the fact exceptional in its character, that the survey was already before that court, and pending there upon objections, in June, 1860. To establish such an exception to the rule generally applicable to cases such as the confirmation to the city, would, of course, devolve upon the defendant, and this he must do by affirmative proof of the fact. In the absence of such proof, the presumption must be indulged that the exclusive jurisdiction over the survey of the city lands was retained in the.Executive department of the Government.
It results from these views that the motion for a new trial should have been granted. Order reversed.