Gunn

This was an action of ejectment, brought to recover two tracts of land situated in Sacramento county. On the trial, the plaintiff intro *269 duced in evidence a grant from Manuel Micheltorena, Governor of California, to Sheldon, and also proved an occupation of a portion of the land described in said grant, though not of the premises in controversy. The grant is in the usual form, and there is no dispute as to its authenticity. To its introduction the defendants object: First, that it was conditional; that it was not shown that the conditions had been complied with, and that it was not evidence of title. Second, that at best, it conveyed but an inchoate title, insufficient to maintain an action of ejectment, and inadmissible to qualify the plaintiff’s actual possession. Several other errors have been assigned, which we will notice in their order.

In Leese and Vallejo v. Clark, 3 Cal. R., I had occasion to examine the character of these grants, and it was there decided, that a mere concession of land by the Departmental Governor of California, did not convey an absolute title in fee simple; that to entitle the grantee to an indefeasible title, it was necessary that all the…

I concur in the judgment of affirmance in this cause, but not entirely in the opinion of the Chief Justice. I do not think the plaintiff’s title sufficient to sustain an action of ejectment. In my opinion, however, he is clearly entitled to recover upon his continuous possession under color of title.

The grant introduced, and the delivery of possession under it, vested in the plaintiff the right to the exclusive occupancy of the lands embraced within the boundaries of his tract; and it was properly admitted in evidence to show the extent of his possession, and the animus with which he entered.