The appeals are from the judgment and from an order denying a motion for a new trial.

This is one of the series of cases mentioned in the opinion in L. A. No. 3060, entitled the People v. California Fish Co., ante, p. 576, [ 138 Pac. 79 .] The present case involves tide land location No. 69. The application and survey therefor were filed on December 23, 1878, payment was made on July 16, 1883, and the patent was issued on August 4, 1883, to William L. Banning. The land embraces a strip of tide land extending along the water-front of San Pedro occupied by the defendant railroad companies by its railroad tracks and wharves. All of this strip lying north of the prolongation of the center line of Fourth Street in San Pedro lies within two miles of the corporate limits of the town of Wilmington as incorporated by the act of 1872. The remainder thereof is beyond said limits. The law governing the case is the same as that stated in the aforesaid opinion in L. A. No. 3060, and we refer to that opinion for the discussion thereof. The land within the two-mile limit was withheld from" sale at the time this patent was issued, and Banning obtained no title thereto by his patent. With respect to the land beyond those limits he obtained title to the soil as mentioned in said opinion, subject to the public easement for navigation and fishery.

The appellants claim certain rights under a wharf franchise and permits issued by the state authorities, respectively, on June 4, 1881, and April 7, 1887, the latter being issued under the provisions of section 478 of the Civil Code. Under it the railroad company built a track and established wharves at San Pedro on the premises. Upon the trial it was stipulated that the rights of the, appellants under these permits should not be considered or adjudicated, and the judgment accordingly saves them.

The defendants also claim title by prescription and set up the bar .of the statute of limitations. With respect to all that part of the tract lying within two miles of Wilmington, there has been no possession by defendants, except under the wharf franchise and state permits for railroad purposes above mentioned. This possession was not adverse to the state, as to the fee, but was attributable solely to the right of possession by virtue of the franchise and permits. It did not set the statute of limitations in motion, and' could not support a title by prescription to any subordinate estate in the land. The land lying beyond the two-mile limit was not reserved at the time of the tide land purchase. Under the principles stated in the aforesaid opinion in L. A. No. 3060, the patent, as to this part, conveyed title to the patentee, subject to the public easements for navigation and fishery. This is all that could be gained by defendants by adverse possession, or statute of limitations. It is therefore unnecessary to consider the effect of adverse possession of the land outside of the two-mile limit.

With respect to the title under the state patent, the court made no finding of the fact that the Southern Pacific Railroad Company had, by mesne conveyances, succeeded to all the right and title of William L. Banning. This fact was proven and it, is not disputed. This court, in the exercise of its appellate jurisdiction cannot make findings, and as this fact is essential -to a proper judgment saving the rights of the defendants to the soil of all that part of the land lying south of the prolongation of the center line of Fourth Street aforesaid, subject to the public easement for navigation, it will be necessary to reverse the judgment in order that said defect may be supplied. The court below, upon the going down of the remittitur, will make a finding on this subject upon the evidence already given in the cause and such additional evidence as may be offered relating to the fact mentioned, and thereupon enter such judgment as the fact may warrant. If the railroad company has succeeded to siaid right and title judgment will be given protecting their interests in conformity with the principles stated in the aforesaid opinion in L. A. No. 3060.

The order denying a new trial is affirmed except as below stated. The judgment is reversed with directions to the court below to proceed to take evidence and make the additional finding as stated in this opinion and render judgment in accordance therewith.

Angellotti, J., and Sloss, J., concurred.