This is an action of ejectment, brought to recover possession of lands, claimed by plaintiff to be within the exterior boundaries of the Bancho Arroyo del Bodeo. The tract of land of which the plaintiff claims that juridical possession was given under the Mexican Government, included the lands in controversy, the grant being of a tract one quarter of a league in width, between the Arroyos del Bodeo and Soquel, and one league in length northward from the Bay of Monterey. The Land Commission confirmed the grant, and on appeal to the District Court of the United States, the grant was held valid to the extent of one league in length by one quarter of a league in width, within the boundaries above stated. *523From this confirmation an appeal was taken to the United States Supreme Court, but it does not affirmatively appear that any action has been had in that Court. In 1857 an order was made by the District Court, that the appeal was thereby dismissed, and that the claimants had leave to proceed as upon final decree.
In 1858 a deputy United States Surveyor made a survey in the field, which survey included the premises in controversy. This survey was not approved; on the contrary, the United States Surveyor-General for California, in 1861, altered and corrected the northern boundary line of the rancho, as reported by the deputy surveyor, and caused a map to be platted, upon which the northern line of the grant was laid down and run, and included no part of the premises in controversy. The survey, as thus altered and corrected, and the map thereof, were approved by the Surveyor-General February 5, 1861, and were by him placed on file in the records of his office; thereupon the said Surveyor-General, in 1861, gave notice of such survey, by publication, as required by the Act of Congress of June 14,1860. Under this publication no objections were made to the survey, and no application was made to the District Court for any order. In 1869 the Surveyor-General, assuming to act under the Act of Congress of July 2,1864, caused another notice of the survey to be published, and, under this last publication, objections to the survey were filed by the plaintiff and others; but at the commencement of this suit no other steps had been taken, nor had the Commissioner of the General Land Office acted in the premises; no patent had been issued, and, so far as appears, the survey still remained in the office of the Surveyor-General.
In 1853, plaintiff’s grantors let one Eider into possession of the premises in controversy, under an agreement to occupy it for dairy purposes. Eider never surrendered possession of the premises to plaintiff’s grantors, but on the ninth day of January, 1860, asserting himself to be the owner, and denying the right of the plaintiff’s grantors to the same, and denying that the premises were or ever had been any part of the Eancho Arroyo del Eodeo, conveyed his interest therein to defendant Pagles, who then entered into possession of the whole of the premises in controversy, inclosed the same by a *524substantial fence, and ever since has and still occupies the same for farming and agricultural purposes, residing thereon, and ever since such purchase he, Pagles, has been in the open, notorious, continued, undisturbed, and uninterrupted possession and occupation of the land, denying the title and claim of plaintiff to the same, and denying that any part thereof did belong or had belonged to said rancho, but asserting that the same was, until the date of the patents hereinafter mentioned, portions of the public domain of the United States, and that since the dates of such patents he is the owner in fee of the whole thereof. The patents above referred to are patents issued by the officers of the United States in 1868 and 1870, upon pre-emption claims made by said Pagles and another, and the title, if any, granted by said patents, is vested in the defendant Pagles.
The Court below rendered judgment in favor of the defendant Pagles, holding that “the approved survey of the United States authorities, until set aside, must, for all the purposes of this controversy, be taken as conclusively establishing the true lines of the grant, and until the same is corrected, modified, or set aside, must be held binding upon Courts and litigants.” I think the Court below was correct. The approval of the survey and plat of February 5,1861, by the Surveyor-General, and the publication of the notice (no objection being made thereto) was a confirmation of the grant to plaintiff’s grantors, and determined the boundaries of the grant, at least for the purposes of this case, and plaintiff can not recover possession of the premises so long as it shall stand. (Bernal v. Lynch, 36 Cal. 144; Seale v. Ford, 29 id. 106.) The publication of the notice by the Surveyor-General in 1861—no objection having been made, or other proceeding had, in relation thereto—was a confirmation of the survey and an establishing of the lines of the grant. It had, under the Act of Congress of June 14,1860, “the same effect and validity as if a patent for the land surveyed had been issued by the United States,” and the plaintiff stands in the same position as he would if he had his patent. (Seale v. Ford, supra.) It seems that under the Act of Congress of July 2,1864, the survey must be forwarded to the Commissioner of the General Land Office for his action; but the survey in this case had, under *525the Act of June 14,1860, become approved before the passage of the Act of 1864. The right to measure off and fix the lines of a grant rests with the political department of the Government. (Moore v. Wilkinson, 13 Cal. 486.)
The defendants’ plea of the Statute of Limitations, too, is effectual to defeat this action. Reading the Acts of the Legislature of this State of April 11,1855, and April 18, 1863, together, it appears that the right of defendant Pagles to retain possession until plaintiff shall, if he can, obtain a patent upon his grant, is clearly provided for; he is within the last proviso of Section 6 and within Section 7 of the Act of 1863. Under the Statute of Limitations of this State he had been in the possession of the premises more than five years, under an approved survey, before the republication made by the Surveyor-General; and such republication, and the objections filed thereunder, would not affect his right. We are aware of the decisions of the United States Supreme Court and of this Court, that where juridical possession has been delivered under a Mexican grant, the grantee may recover to the exterior lines of such possession and grant; the principle of such cases does not apply here. In this case the Government of the United States has performed its part of the treaty with the Mexican Government, and has, by its proper officer, in the method provided by law, ascertained the extent of the grant, and is, doubtless, ready to issue its patent when called for. It has ascertained in the method provided by law, that, even though juridical possession of the premises in controversy may have been delivered to the grantee, yet the grant, as confirmed, did not include the premises, and therefore the grantee took no title thereto. Under the decisions, the right of the grantee to maintain ejectment for all the lands within the limits of the juridical possession exists down to the time of establishing the limits of the grant by the United States Government; and when so established, the lines of the juridical possession must, of course, yield to the established lines. (Chipley v. Farris, 45 Cal. 528; Mahoney v. Van Winkle, 33 id. 448.)
I, of course, omit to give any consideration to the effect of the patents held by Pagles; because if plaintiff had any right or claim to the lands as belonging to his grant, Pagles’ patents *526were issued without authority of laws; on the other hand, if the survey became final, the land was a portion of the public domain and subject to pre-emption.
As to the point that an appeal was taken to the Supreme Court of the United States from the District Court, and that it does not appear that such appeal was ever dismissed by the appellate Court, it does not appear that the appeal was not dismissed, and as the District Court subsequently made an order authorizing the grantee to proceed as upon a final decree, and as proceedings were had, viz., a survey and approval, the law will, after such a lapse of time, presume that the District Court had before- it an order of dismissal or a stipulation justifying its action, rather than that it acted without such order.