Appeal from the Sixth Judicial District.

This action was for the recovery of a tract of land in Sacramento County, called the “ Pocket.” The complaint prayed for an injunction to restrain waste, which was granted. The defendants answered separately, claiming the portion occupied by them respectively, being 160 acres each; that the land was public land, and that they had complied with the Act prescribing the mode of maintaining and defending possessory actions on Public Land in this State, passed April 20th, 1852.

The plaintiffs proved that they had taken possession of the land in August, 1849, no person being thereon, and soon afterwards inclosed and commenced to build a house upon it, and that the defendant took possession of it in June or July, 1852. The inclosure of the plaintiff was by making a ditch from the river Cassimer to a slough. The Pocket is bounded by the river, the tule, the slough, and the ditch.

The Court instructed the jury that the plaintiffs could re-*cover if they were in prior possession of [68] the premises in controversy, and had it inclosed within, by natural or artificial boundaries, or by both, and to what extent they may have inclosed; and if the jury believed that the plaintiffs were in prior possession, it was evidence of a title in fee simple; that the law of California respecting the occupation of public land has nothing to do with this case. A party may have a fee simple title by possession merely, short of twenty years.

The defendants asked the Court to give the following instructions, which' were refused by the Court, and the refusal excepted to by the defendants:

1st. The presumption of law, arising on the treaty by which the lands of California were ceded, is that all lands in the State are public lands, unless it is shown that the title has passed out of the Government. The jury will presume the land is Government land, unless it appears to have been granted away. If the land is Government land, the plaintiffs cannot recover more than 160 acres of land in this action.

2d. To constitute a real and substantial inclosure, definite and notorious in its character, the plaintiffs must show that they constitute a fence and substantial artificial barrier, such as a ditch or fence, clearly marking the line of such inclosure, and the extent of the possession under it, and clearly separating the land claimed from the common ground.

3d. The plaintiffs having failed to show that any claim to the tract in controversy has ever been filed before the Commissioners, under the Act to ascertain and settle the private Land Claims in the State of California, the same is to be held and considered as part of the public domain of the United States.

4th. That the plaintiffs must show that their claim of possession does not exceed 160 acres, and that the boundaries of the same are marked out, and that they have made improvements thereon to the value of one hundred dollars.

5th. If the jury believed, from the evidence, that the defendants are in possession of whole, distinct and separate parcels of the land described in the complaint, they will find for defendants.

* And thereupon the defendants asked the Court to [69] give the following instructions, which the Court gave, with qualifications-, embraced in brackets, to which qualifications defendants excepted.

If the defendants entered separately, and held separate parcels of the land, the plaintiffs cannot maintain á joint, action against the defendants, and the defendants are entitled to a verdict at your hands. [If the defendants hold separately, and not jointly, the jury will bring in separate verdicts against each.] The digging of a ditch across a. neck of land, bounded on the other three sides by a river, tule and slough, is not such an inclosure as will sustain the alleged possession of the plaintiffs. [It is, if it forms an impassable barrier or inclosure.]

The jury brought in a verdict in favor of the plaintiffs, and separate verdicts against the defendants, and judgment, was entered accordingly.

Mere possession is no proof of title in fee simple. (1 Greenl. Ev. § 51, 56; 1 Cal. 480; Adams’ Eject. 32, note. Possession, to be evidence of title in fee or to maintain ejectment, must have continued uninterrupted for at least, twenty years. (5 Dana, 394; 9 Wend. 520; 6 Cow, 750.)