dissenting:
I dissent from the judgment of the court, in- so far as it orders a re-trial of the equitable issues arising upon the answer of the defendant.
When the case was called for trial it presented two distinct classes of issues to be decided — equitable issues and legal issues. According to the rule of Weber v. Marshall (19 Cal. 457), which, in the opinion of the court, lays down the correct practice in such cases, the district judge should have first tried and disposed of the equitable issues before calling a jury to try the issues involved in the case at law, and the defendant had no right to demand a jury trial of the whole case. The court, therefore, committed no error in refusing the demand for a jury at the time it was made.The error which it did commit was in undertaking to decide the issue raised by the defendant’s plea of title by prescription, as to which he was entitled to the verdict of a jury. This error, however, did not in any manner affect the decision of the equitable cause of action relied upon by the defendant as a separate and distinct defense. There is no reason, therefore, why that decision should be set aside. There are two distinct questions to be decided. One has been correctly decided; but, in the decision of the other, error has intervened-. The appellant is entitled to a retrial on the one question, but not of the other.
As to the questions principally discussed in the opinion of Justice Leonard, I concur in the conclusion that the plaintiff had five years after the issuance of his patent in which to commence his action.