held, in his instructions to the jury:
1st. That as to the first point assumed by the plaintiff: the grant not having had the approval of the departmental assembly, created only an inchoate or equitable title in the claimant, requiring political action to perfect it; that the legal title to the land, in virtue of the treaty with Mexico, passed to the United States; that the 8th and *2849th articles of the treaty imposed a political obligation upon the United States, to protect- the Mexicans included in the acquired territory, in their property, but .without restriction as to the mode—in regard to which Congress had a discretionary power, and in the exercise thereof might have given to the decree of confirmation of the Land Commission, or the courts, the effect of passing the title from the'United States to the claimant,—such, however, is not .the act of Congress, passed in 1851, to ascertain and settle private land claims in the state of California'; its language is, in conferring power upon the land commission and courts, “to decide upon the validity of the claim ;” (See § 8,) leaving the character of the title as it was before; this character it retained, whether it was an inchoate or equitable title, or a perfect legal title, under the grant; that it can derive no aid from a decree of confirmation, either by the land commission or the court, to entitle it' to judicial notice in this form of action; that the decree of confirmation: did not divest the United States of the legal title, but she yet holds it as trustee for "the claimant, and would so hold it under the existing law, -until the emanation of the patent, although the issuing thereof is a ministerial act; that a perfect Mexican grant, vesting in the grantee the legal title, is sufficient, with or without confirmation, to sustain an action of ejectment; that the grant, in this case, creating only an equitable title, is insufficient to enable the plaintiff to recover.
It was also held, that the only notice which a jury had a right to take of the record evidence of the decree,- was to enable them to determine whether the claim was presented to the proper forum, within the time limited by the act of Congress.
2d. It was also held, as to the second position, that the grant conferred a right to only four leagues, provided that quantity is within the boundary of the grant; that if there is an excess, the same remains part of the public domain; that if there is no excess, the grant of -the Governor, describing the tract by metes and bounds, was a segregation thereof from the public domain; that the creek “Alto,” and a straight line from its termination to the bay, projected according to the general course of the creek, is the line described- in the grant, towards the north; that the line towards the bay, is the line of ordinary high tide; that if there are more than four leagues within the described boundary, judicial -possession, by metes and bounds, was necessary under the *285Mexican government, to segregate the land granted from the puMic' domain, and was also- necessary, to confer upon the plaintiff the right of constructive possession of the land in connection with Ms actual .possession of a part thereof; that this right of constructive possession, did not attach without a certain and definite boundarythat the quantity of land within the déscrib 3d boundary, is a question of .feet for th© jury to determine » that if there are not exceeding four leagues, th© description.ih the grant is a sufficient indication of the boundary to enable the plaintiff to avail himself of the cotistradive possession, but if there is an excess, the plaintiff’s right being limited to four leagues, the teame should havé been set off to Mm by metes, and bounds, without wMch the plaintiff cannot avail Mmself of the constructive possession.
3d. It was also held as to the tMrd position, that if the plaintiff was in the possession of the land in dispute; previously to the defendant, his prior, possession was evidence of an older and better right; that possession of land is the pdwer of controlling- it, and subjecting it to one’s own use ; that it is hot necessary, for this purpose, that it should have been enclosed with a fence, provided tire -use was secured; that “rodeoing” was an act of ownersMp ovér, and is a circumstance for the jury to consider as to the boundary of the rancho, but unless the owner had control of the land as above mentioned, “ rodeos” do not constitute possession; they are circumstances, however for the consideration of the jury, in, determining the fact of the owner’s control of the land.
The jury found for defendant.