I dissent. The right of entry upon the demanded premises, asserted by the plaintiff, was founded upon a United States patent, which was issued and delivered to the plaintiff on the 17th of March, 1875, and purported to convey the premises in question with other lands. The action upon this patent was commenced on the 28th of October, 1881.
On the 18th of March, 1875, defendant entered upon the land; and at the commencement of the action he was in possession of it," and had been in the actual and exclusive possession of the same continuously for six years ’ before he was sued.' During that time he claimed the land adversely to the title of the plaintiff, and for three years of the time, namely, from the year 1878 until the year 1881, he paid all the taxes which had been levied upon the land. Upon these facts the court below decided that the plaintiff’s action was barred by the Statute of Limitations, and ordered judgment accordingly. I think the decision and judgment are erroneous.
By the patent the plaintiff established the legal title to the property. From this fact two legal presumptions resulted: First, that the plaintiff, as holder of the legal title, had been possessed of the property within five years before the commencement of the suit; and secondly, that the occupation by the defendant was under and in subordination to the legal title. *267"Opon these presumptions the plaintiff was entitled to judgment, unless the defendant overcame them by proof that he had held and possessed the property adversely to- the legal title for five years before the commencement of the suit. (§§ 318, 321, Code Civ. Proc.)
Hegatively the proof shows that the defeudant did not claim the land under color of title. His claim was that he had acquired title at the commencement of the suit by adverse possession under the Statute of Limitations. To establish the acquisition of such a title, it. was necessary for him to prove that he had claimed and occupied the land for five years continuously before the commencement of the suit, by a substantial enclosure of the land, or by its usual cultivation or improvement, and the payment of all taxes which have been levied and assessed upon it. (§ 325, Code Civ. Proc.) These were the requisites and requirements of adverse possession as a source of title under the Code as it was when the defendant was sued. And the practical question arises, has the defendant proved an adverse possession with the requisites and requirements of the Code for the time prescribed?
The proof answers the question in the negative; for although it shows that the defendant occupied and claimed the land for the period of five years continuously, it also shows that he has not paid the taxes levied and assessed upon it during the period of five years. Therefore the Statute of Limitations has not run in his favor.
But it is urged that as the Code did not require the payment of taxes as essential to adverse possession before the amendment of April 1,1878, it was not necessary for the defendant to prove payment of taxes for five years; and as he has, in fact, paid the taxes every year since 1878, for a period of three years, he has complied with the law.
The payment of taxes for five years was, however, one of the circumstances specified in the section of the Code invoked by the defendant as requisite to constitute the adverse possession necessary to confer title. As the Code stood when he invoked it, there was no such thing as a Statute of Limitations founded upon three years’ adverse possession, and no such thing as a Statute of Limitations founded upon an adverse possession for *268five years without payment of taxes. The fact, then, that the defendant had continuously occupied the land for six years adversely to the plaintiff, and had paid the taxes levied upon the land for three years of that time, was not proof of the adverse possession for five years, which the law required.
The right asserted by the defendant depended wholly upon section 325 of the Code of Civil Procedure as it was at the commencement of the suit. No absolute right to the land had been acquired by the three years’ adverse possession before the amendment of the section on April 1, 1878. At that time the defendant was in law a trespasser upon the land, without right or claim of title; or if he had any right it was inchoate and imperfect, and subject to any legislation upon the section of the Code under which the right was claimed. It was not a vested right; being inchoate and imperfect, it fell with the repeal of the law upon which it depended. The amendment of 1878 operated as a repeal of the law as it had previously existed. (Billings v. Harvey, 6 Cal. 381; Billings v. Hall, 7 Cal. 1; Clark v. Huber, 25 Cal. 596; Bensley v. Ellis, 39 Cal. 313.)
A Statute of Limitations is purely an act of grace on the part of the legislature. Such an enactment is a measure of public policy only. It is entirely subject to the mere will of the legislative power, and may be changed or repealed altogether as that power may see fit to declare. Such legislation relates to the remedy only, and not to any property right or contract right. (Billings v. Hall, supra.) It may have a retrospective operation ; but retroactive legislation is not unconstitutional where it only affects the remedy. (Comm. v. Duffly, 96 Pa. St. 506.) Hence it has become a settled rule of law that when a title to land has been acquired by adverse possession under a statute, the legislature does not possess the power to destroy the same, and a repeal of the statute does not divest the title (Sharp v. Blankenship, 59 Cal. 288); but at any time before the title has become vested the statute may be repealed or altered, either by shortening or lengthening the period required to make the title absolute. (Wood on Limitations, § 35.)
Petition for a rehearing denied.