dissenting:
The land in controversy formed a part of the pueblo lands of Los Angeles. The city of Los Angeles succeeded to the title of the Pueblo, and both parties claim title under the city. The defendant also relies on the Statute of Limitations. The jury in response to special issues submitted to them, found that the defendant had been in the adverse possession for more than five years before the commencement of the action; that the claim of the city to the pueblo lands was confirmed by the Board of Land Commissioners in 1853; that the appeal therefrom to the District Court was dismissed, February 2, 1858; “that so far as the present mayor of said city knows, no patent for said city lands has ever been issued, and that no other facts were proven in regard to the confirmation, survey, or patent of the lands of the city.” The jury also found a general verdict for the defendant.
The only questions discussed here which require notice relate to the Statute of Limitations. The court instructed the jury to the effect that if the plaintiff sought to avail himself of the provisions to the sixth section (the supplemental section) of the amendatory act of 1863, the burden of proof was upon him to show the facts which brought the case within the provisos. That rule was laid down in Richardson v. Williamson (24 Cal. 289), and was approved in Vassault v. Seitz (31 Cal. 225), and other cases in this Court; and the rule having been acquiesced in for more than ten years, ought not to be disturbed except for the most cogent reasons. The able argument of the plaintiff has failed to shake my confidence in the correctness of that rule.
The plaintiff presents, and argues at some length, the point that in a case of this character, nothing except a patent will set the Statute of Limitations in motion. The evidence that the claim of the city had been presented to and confirmed by the Board of Land Commissioners, and that the appeal from the decree of confirmation had been dismissed by the United States District Court, on the 2d day of February, 1858, showed, of course that proceedings for *64final confirmation were pending at that date. That evidence, in the absence of evidence of final confirmation, established by presumption the fact that proceedings for final confirmation were pending at the passage of the act of 1863. The sixth section of the Statute of Limitations of 1855, therefore, had not commenced to run when the act of 1863 was passed; and as the action was commenced less than five years after the passage of the act of 1863, it is palpable that the plaintiff’s cause of action was not barred by the statute. It thus appears that the point argued by the plaintiff is not presented by the record. Although it is manifest from the facts presented by the record, that the plaintiff was not barred by the Statute of Limitations, yet we cannot reverse the judgment on that ground; for, first, the general verdict may not have been found on that ground; and second, if it was so found, the question of the sufficiency of the evidence to sustain the verdict on that issue is not presented by any specification in the statement on a new trial.
I am therefore of the opinion that the judgment and order should be affirmed.