Appeal from the District Court of the Fourth District, City and County of San Francisco.

This case was submitted to the Court upon an agreed statement, the following extract from which fully exhibits the origin and nature of the controversy:

In the year 1855 the College of California was incorporated as a College of Science and Letters, pursuant to the provisions of an Act of the Legislature of the State of California, entitled “An Act to provide for the Incorporation of Colleges,” passed April 20,1850, and the several Acts amendatory thereof.

The Trustees of said College received, from time to time, general donations of money from individuals, for the benefit of the College; and also acquired, by gift and purchase, various parcels of land, among which was the one hundred and fifty acre tract selected as the site for the College, which is the subject of this suit.

The Trustees of the College were desirous to create and carry on a University, but finding themselves unable, for want of sufficient pecuniary resources, to do so on the scale required by the educational necessities of the State, and being desirous of inducing the State of California to appropriate from the public funds sufficient money to endow a University which should satisfy the wants of the community, they, on the 7th October, 1867, passed the following resolutions, viz;

“Resolved, That the President and Board of Trustees of the College of California hereby offer to donate and convey to the State Board of Directors of the Agricultural, Mining and Mechanical Arts College, one hundred and sixty acres of land, in the Township of Oakland, Alameda County, including the lands between the two ravines, commonly known as the California College site, for the site and farm of the said State College. ,

“Resolved, That in making this donation, the College of California is influenced by the earnest hope and confident expectation that the State of California will forthwith organize and put into operation, upon this site, a University of California, which shall include a College of Mines, a College of Civil Engineering, a College of Mechanics and a College of Agriculture, and an Academical College, all of the same grade, and with courses of instruction equal to those of Eastern Colleges.

“Resolved, That the President and Secretary of this Board be authorized to enter into a contract with the State Board of Directors of the Agricultural, Mining and Mechanical Arts College, to the effect, that whenever a University of California shall be established, as contemplated in the next preceding resolution, then the College of California will disincorporate, and, after discharging all its debts, pay over its net assets to such University.”

The proposition embodied in the foregoing resolutions was accepted, and the President and Trustees of the College of California, by deed, conveyed said tract of one hundred and sixty acres directly to the State of California. And, on the 23d March, 1868, the Legislature of the State of California passed an Act entitled an Act to create and organize the University of California, to be located upon said tract of one hundred and sixty acres, so conveyed to the State. And, in pursuance of the provisions of said Act, the Board of Directors provided by it for the government of the University, incorporated according to law, and are now a corporation under the name and style of the Begents of the University.

The Begents of the University entered upon and took possession of said tract of one hundred and sixty acres, selected as the site of the University, and have expended thereon large sums of money, viz : eight or nine thousand dollars, in improving said land and preparing it for the grounds and buildings of the University. They have also contracted to purchase from the Trustees of the College an additional tract of forty acres for the University, at a specified price, and they are now in the possession of the said lands for the State, holding them as the site of the University.

The passage of the Act to create and organize the University of California was procured at the instigation of the Trustees of the College of California; and no notice whatever was given to the State, or to the Begents of the University, that any donation whatever had been made to the College until after the contract and expenditures aforesaid.

The College of California still retains about two hundred acres of lands heretofore described, which have been greatly enhanced in value by the location of the University on the one hundred and sixty acres aforesaid. It also holds lands and buildings in the City of Oakland which it uses for educational purposes, and these are also greatly enhanced in value by the same cause, and are rendered fitter for educational purposes by the proximity, of the University; and the value of its property now on hand is at least equal to the whole amount of donations made to it.

But the Trustees of the College question their power to disincorporate, and, after paying debts, to turn over the remaining assets of the College to the University; and this has created a cloud upon the title of the State of California to the said site of the University, or a claim to the same in the College, adverse to the State, which has caused the Regents of the University to suspend the expenditures of any of the funds of the University in improving or building upon the said site, until such adverse claim or cloud is judicially determined, and the legal title of the State be quieted.

And, for the purpose of having the adverse claim of the College to said land determined, and the legal title of the State to the same quieted, the parties hereto agree to the foregoing as a full and correct statement of all the facts upon ■which the controversy between them depends, and submit the same to this Honorable Court for its decision and decree.

Upon this statement, a judgment was rendered in favor of the plaintiff, in the Court below, and the defendant appealed.