O'Conner

delivered the opinion of the court. Wells, Justice, concurred.

The complainant alleges, that in September, 1849, he settled upon a tract of land, “ the same being public land of the United States,” that subsequently a foreigner, named Hogan, built a house and occupied a portion of the tract, and that now the defendant, as executor of Hogan, is offering the same for sale, and he prays an injunction and damages for the occupation.

Upon what principle his claim is based, I am at a loss to imagine. The prospective pre-emption act of Congress, of 1841, is expressly confined to the surveyed lands, and was consequently not extended to California at the time of the acts complained of.

*372 The statute of this State, which protects the possession of settlers on public lands, to the extent of one hundred and sixty acres, was not passed until April, 1852, long subsequent to the commencement of this suit. Under neither of these two acts, then, can the plaintiff claim any rights. He is himself but a mere naked trespasser, by his own showing, and entitled to no relief, his own averment destroying the presumption of title which the law makes in favor of possession.

The order below is…