Woodworth

*304 By the Court,

The action is brought to recover possession of a lot of land in San Francisco. At the commencement of the suit the defendants were in the actual possession of the premises, having entered without force, fraud, or any clandestine means, and claiming to be bona fide occupants of the** same under a written conveyance to them. When they took possession there were no visible signs that the lot had ever been improved, or cultivated, or occupied by any one. Some survey stakes had been driven at the corners of the large one hundred vara tract of which the lot in question is a subdivision, and some brush had been cut thereon, apparently for the use of tents in the vicinity. The land, in fact, was in a wild state. The defendants had the subdivision lot, which they occupy, surveyed, and have made valuable improvements upon it.

In June, 1848, the plaintiff claiming to be the owner of the one hundred vara lot, went upon it “ to take possession,” drove some stakes at the corners, and cleared away the brush for a dwelling on some portion of it, but what portion does not appear. There are no other acts, either at that time or since, showing possession on his part. It appears,…

(dissenting.) The respondent who was plaintiff, instituted proceedings before the late court of First Instance, to recover possession of a certain parcel of land situated in the city of San Francisco, being one hundred varas square, and known as lot No. 22 upon the map or plan of the city. The respondent avers in his complaint that the defendants unlawfully entered upon, and despoiled him, the plaintiff, of his possession of a portion of said lot, on the 26th day of Feb. A. D. 1850. The respondent represents that prior to, and since, the loth day of April A. I). 1847, he has been the owner in fee, by a full and absolute title of said lot, and prays to be restored to the possession of that portion of the same of which he has been so despoiled, Ac.

The defendants answered, 1st. That plaintiff was not the owner in fee of said premises. 2d. That defendants did not unlawfully enter upon said premises. 3d. That plaintiff is not entitled to possession, nor has plaintiff been despoiled of any part or portion of his possession as is in his complaint alleged. The respondent introduced a deed from the Alcalde of San Francisco, which was executed in answer to a petition representing among…