By the Court,
Leonard, J.:Twice before, this action has been before this court on appeal. (8 Nev. 95; 9 Id. 69.) The character of the action is stated in the reports above referred to. The issues made by the pleadings at the last trial in the court below were the same as at former trials, with the exception that at the last defendant pleaded the statute of limitations, as follows: “That for more than five years prior to the commencement of this action, and for more than five years *111since tlie plaintiff had a cause of action against the defendant, as alleged in the complaint, this defendant ivas in the actual, quiet and peaceable possession of the premises described in the complaint, and that he held, occupied and possessed said premises under claim of right, and adversely to the said plaintiff and all persons whomsoever, and that said possession has been open, notorious, peaceable and continuous; whereby the defendant has acquired, and now has, as against the said plaintiff, and as against all persons whomsoever, a right and title by prescription to the said premises described in the complaint.”
Defendant demanded a jury trial, which was refused by the court. Plaintiff obtained judgment in his favor for the land in dispute described in the United States patent only; that is to say, the land in question outside of the town site of Carson. No damages were claimed by the plaintiff or awarded by the court. Appellant moved for a new trial, on the grounds:
First. “Errors of law occurring at the trial which were, then and there, duly excepted to by defendant;”
Second. “Insufficiency of the evidence to justify the findings and decision of the court, and that the same are against law.”
The motion for new trial ivas denied, and this appeal is taken from the order denying the same.
Appellant’s assignments of errors are as follows:
First. Errors of law occurring at the trial duly excepted to, to wit:
1. “ The court erred in denying defendant a jury trial (the defendant having demanded the same), the action being ejectment to try the title and right of possession to land, and -various issues of fact being raised therein. No equitable relief is demanded, and, under the pleadings, none could be granted;”
2. “The court erred in excluding the testimony of Adolphus Waitz, register of the United States land-office, and the records of said office. Said testimony was competent, relevant and material, proving that the plaintiff had entered that portion of the land in dispute outside of the town-site *112limits of Carson city, and paid for the same on the fourth of March, 1885, and on the same day received the pre-emption certificate of payment. This testimony shows that plaintiff’s right of action accrued to him on the fourth of March, 1865, and more than five years having elapsed from that date until the commencement of this action, the same was barred by the statute of limitation of actions, and the defendant had a valid claim by prescription to said land.”
The third assignment of error, to wit: “ Insufficiency of evidence to justify the findings,” etc., as we regard the case, need not be considered.
This action was commenced in the court below May 9, 1871. According to the rejected evidence, respondent made proof and payment at the United States land-office as to the land outside of the town site of Carson citj’-, March 4, 1865, and as appears on the face of the patent, introduced in evidence by respondent, the latter received a patent from the United States government conveying the last mentioned land to him, dated May 10, 1866.
We will first consider the second assignment of error stated. If the statute of limitation of this State commenced to run against respondent’s cause of action at the date of proof and payment by him, to wit: March 4, 1865, instead of at the date of the patent, then the rejected evidence of Waitz, register of the land-office, together with the records of said office, was competent, relevant and material; otherwise not.
“ Civil actions can only be commenced within the period prescribed in this act, except where a different limitation is prescribed by statute.”
“In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time prescribed by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for five years before the commencement of such action.” (1 Comp. L., secs. 1016, 1022.)
*113Under the section last quoted, it cannot be doubted that, respondent could maintain an action for the recovery of the lands in dispute, or for the possession thereof, at any time before the expiration of five years of adverse possession, after he had obtained the legal title.
Should it be admitted, then, as claimed by appellant, that respondent could have maintained an action of ejectment immediately after his proof and payment (which question we do not now decide), still, if the “legal title” did not pass from the government to respondent until the issuance of the patent, it follows, as to the land in dispute described in the patent, that even though respondent might have maintained this action on the fourth day of March, 1865, yet he -was not barred, under the statute, from maintaining it at any time before the expiration of five years of adverse possession after the issuance of the patent to him.
It becomes necessary, then, to ascertain whether the statute of limitation in this case was set in motion at the date of proof and payment by respondent, or at the date of the patent.
It is well established that this statute should be construed like any other, according to the manifest intention of the legislature; and that in ascertaining such intention the language used should be construed, if possible, according to the usual meaning of the words used.
In speaking of the construction of a statute of limitation, Mr. Justice Livingstone, in 1812, said: “The court disclaims all right or inclination to put on statutes of limitation, which are found to be among the most beneficial, * * * any other construction than their words import. It is as much a duty to give effect to laws of this description * * * as to any other which the legislature may be disposed to pass. When the will of the legislature is clearly expressed, it ought to be followed without regard to consequences; and a construction derived from a consideration of its reason and spirit should never be resorted to, except where the expressions are so ambiguous as to render such mode of interpretation unavoidable.” (Fisher v. Harnden, 1 Paine, C. C. 61.)
*114Chancellor Kent, in Demarest v. Wynkoop (3 Johns. Ch. 146), maintained that it would be not only impolitic, but contrary to established rule, both in law and in equity, to depart from the plain meaning and literal expression of these statutes. (See also Phillips v. Pope, 10 B. Mon. Ky., 163; Dickinson v. McCarny, 5 Ga. 486.) The same views are generally, if not invariably, entertained by our state courts of the present day.
There are many decisions, all entitled to the greatest consideration, which hold that after proof and payment by a pre-emptor, he is, in fact, the owner of the land; that thereafter the government holds the land in trust for him; that thenceforth the government even cannot sell it to another or otherwise dispose of it, or appropriate it; that thereafter it is no longer a portion of the public domain, and that it can be taxed the same as though it had been conveyed by patent. But all of the decisions referred to, also hold that the legal title is in the government until the issuance of the patent, although the pre-emptor, after proof and payment, has such an equity that the government even cannot deprive him of the laud. (People v. Shearer, 30 Cal. 647; Peach v. Gabriel, 29 Cal. 585; Gibson v. Chouteau, 13 Wall. 99; Witherspoon v. Duncan, 4 Wall. 218; 7 Ohio, 249; 16 Ohio, 34; Estrada v. Murphy, 19 Cal. 248; Wilcox v. Jackson, 13 Peters, 276; Lindsey v. Miller’s Lessees, 6 Peters, 305; Vansickle v. Haines, 7 Nev. 250; Astrom et al. v. Hammond, 3 McLean, 109; Fenn v. Holme, 21 Howard’s U. S. 488; Union M. and M. Co. v. Dangberg, 2 Sawyer, 455'; Mathews v. Fernea, 45 Cal. 52.)
The “legal title” having remained in the government until the date of the patent to respondent, it follows that the statute of limitation did not commence to run until that date, and according to the principles laid down in Vansickle v. Haines, supra, that the time between the date of the certificate of purchase and of the patent is not to be computed as a part of the five years of adverse user necessary before the presumption of grant arises. (39 Ala. 38; 7 Ohio, 249; 15 Texas, 150.)
The court did not err in excluding the testimony of Waitz *115and the records of the land-office. We have deemed it beneficial to both parties to decide the important question just considered, although the case must be returned for a new trial, by reason of errors disclosed by the first assignment.
The right of trial by jury is a sacred constitutional right, of which no litigant, in a proper case, can be deprived without his consent; and if any of the material issues, to try which either party has a right to demand a jury, be decided against him by the court upon proofs admitted without his waiver of a jury, he is deprived of a substantial right, guaranteed to him by the constitution and laws. A court has not jurisdiction to try an issue which the constitution and laws declare shall be tried by a jury, unless a jury be waived; and if it be tried by the court when a jury is demanded, the party against whom the judgment is rendered upon such issue, is not bound thereby. And, so far as we are able to find, in case of trial by the court where a jury trial is a right, and is not waived, courts do not inquire whether or not the cause has been fairly tried by the court, as they do in instances of error without injury when the cause is tried by the proper tribunal.
Numerous cases are reported which were referred to a referee when the parties had the right of a jury trial, and the result, invariably, was a reversal, although they were fairly tried and proper judgments were rendered. And the reason is patent: a court cannot try an issue which is triable by a jury, unless a jury is waived, for the same reason that-a justice’s court cannot try a cause where the amount in dispute is more than three hundred dollars. It has not jurisdiction. Besides, had the cause been tried by a jury, they might have disregarded the evidence introduced against the party demanding a jury. [The United States v. Rathbone et al., 2 Paine U. S. C. C. 578; McMartin v. Bingham, 27 Iowa, 234; Shaw, Administrator, v. Kent, 11 Ind. 80; Ware v. Nottinger, 35 Ill. 377; Hinchly v. Machine, 3 Greene, N. J. 476; Davis v. Morris, 36 N. Y. 571; Andrews v. Pritchell, 66 N. C. 387; Fire Department of New York v. Harrison, 2 Hilton, 458; Greason v. Keteltas, 17 N. Y. 491; *116Brown v. Hannibal and St. Joseph Railroad Company, 37 Mo. 299; Inloes v. American Exchange Bank, 11 Md. 185; Cahoon et al. v. Levy et al., 5 Cal. 294; The St. Paul and S. C. Railroad Company v. Gardner, 19 Minn. 132; Haskins v. Wilson, 5 Wis. 106; Scott et al. v. Russell et al., 39 Mo. 409.)
At the time a jury was demanded by appellant, so far as appeared by the complaint, this ivas purely an action at law. Defendant, in his answer, denied the allegations of the complaint, and, in addition, set up the plea of the statute of limitation, and title by prescription; also, an equitable defense, to wit: The alleged verbal contract between him and plaintiff; that plaintiff, after obtaining the patent, would convey the land inclosed by defendant outside of the town-site. There were, then, legal and equitable issues raised by the pleadings. The last was an issue which, the court could try with or without the aid of a jury. Upon the other issues the defendant had a right to a jury, of which he could not be deprived without his consent. In such case the true practice is laid down in Weber v. Marshall (19 Cal. 457).
As to the action of the court upon the issue of damages, as 'well as that of occupancy by respondent of the land in dispute within the town-site, as a necessary condition precedent to a conveyance thereof by. the trustee, appellant cannot complain, for the reason that they were both found in his favor. But the issue of adverse possession, and others touching the plea of the statute of limitations as to the land outside of the town-site, both of which were decided against him, he had an absolute right to have tried by a jury. It is true that the burden of proof as to those issues was upon appellant, but he was not obliged to mate any proof until he had a jury to try them. We cannot presume that he put in all his proof upon those issues, inasmuch as a jury was denied him. We are aware that a patent conveying to respondent the land in dispute outside of the town-site was introduced by respondent in evidence, bearing the date upon its face of May 10, 1866, less than five years prior to the commencement of this action. Still, we do not know but appellant could and would have shown that such was not the true *117data, if lie had been permitted to do so before a jury. We only know that he was deprived of the opportunity of doing so against his express demand. We are also aware, if a jury had been allowed, and the patent without objection admitted in evidence, that then its construction would have been a matter for the consideration of the court, and not the jury. But this conclusion does'not now follow for the reasons above stated.
The judgment of the court below is reversed, and a new trial ordered.