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

This was an action of ejectment to recover certain lands in San Francisco, from many defendants.

The various defences set out were — 1. General denial. 2. Plaintiff not in possession within five years. 3. Title. 4. Adverse possession of five years. 5. Title in some third person — and in landlord. 6. Abandonment. 7. Title in the City. 8. Occupancy under color of title.

Judgment was rendered for some of the defendants, that they recover of plaintiff part of the lands, the same being already in possession of the defendants; the suit was dismissed as to some o’f them, and nonsuit entered as to others.

Plaintiffs moved for a new trial, and on denial thereof they appealed from the judgment, and the order denying the motion for a new trial.

The claim of plaintiffs rested upon what is Imown as the Toribio Tanfaran title, who, it was claimed, acquired the same by occupancy, declaration, and improvements.

The other facts are stated in the opinion.

A witness may refresh his memory by any book or paper. (Doe v. Perkins, 3 Tewk. 749].

It is of no consequence who made the paper. fCowen & Hill’s Notes to Phil, on Ev. Note 377 to page 412.)

Whenever one party buys land, and takes the conveyance in the name of another, the law implies and raises the trust. The fact of such purchase must be, and always is proven by parol. (Osborne v. Endicott, 6 Cal. 153; Pierce v. Robinson, 13 Cal. 125; People v. Irwin, 14 Cal. 435; Johnson v. Sherman, 15 Cal. 291; Russ v. Mebius, 16 Cal. 355.)

The testimony of Stevenson, stands simply as testimony given by a grantor to limit the operation of his own deed, and parol testimony to limit the deeds of others.

“Exhibit 14” was shown to Stevenson on the stand, to prove by him that it was the map of the survey which he and those interested with him had made, for the purpose of making a partition of the property purchased. This evidence was competent on cross-examination, as Stevenson had testified as to the extent of his purchase, and what he and his associates intended to purchase. The map lie bad. bad made himself immediately after tbe purchase, and was therefore competent to contradict him,

A person who enters upon land under a deed duly executed, acknowledged and recorded, becomes, if bis grantor was not tbe true owner, a disseizor, and as such, is seized of an estate in tbe land in fee simple absolute, de-feasible only by tbe entry of tbe true owner. This estate can only pass by deed, and, consequently, it cannot pass by abandonment.'

This position is sustained by -the following authorities, . from which it, as a conclusion, is drawn. (1 Hillard on Beal Prop. Cb. 2; Taylor v. Horde, 1 Burr. 110; Putnam v. Fisher, 34 Maine, 172; Moody v. Fleming, 4 Geo. 115; Made-lot v. Dubreuil, 9 Miss. 477: Noyes v. Dyer, 25 Maine, 468; Beading y. Baiusteine, 2 La Bayne, 829, k. 422; Higby y. Bice, 5 Mass. 352; Wordy. Fuller, 15 Pick. 189; Warren v. Ghilds, 11 Mars. 225; Goodwin v. Hubbard, 15 Id. 214; Wells y. Prince, 4 Id. 64; Williams y. Woodward, 7 Wen. 255; Blethen y. Divinel, 34 Maine, 135; Bolster y. Cushman, Id. 429; Flagg y. Mann, 2 Sumner, 525.)

What has been said by this Court, would seem to intimate an opinion in accordance with tbe above conclusion. (Hides v. Coleman, 25 Cal 131; Birdv. Lisbross, 9 Id. 7.)

Our Statute of Limitations does not alter tbe common law, that be who is in possession without deed, “possessio pedis,” “ bolding by bow and spear,7’ has no estate, but a naked possession, while be who enters under deed from such person, becomes seized in fee of an estate by disseizin; and as a necessary result, tbe one can abandon tbe possession, and tbe other can only pass bis estate by deed.

If tbe premises in controversy are within tbe boundaries of tbe former Pueblo of San Francisco, then there is no Statute of Limitations which affects this action. See Hubbard y. Barry, (21 Cal. 324) that tbe presumption of title arises from possession. What title in this case ? Clearly tbe Pueblo title.

Tbe distinction between settlers on public lands and settlers on private lands, as made in tbe case last cited, makes no difference, because whether plaintiff has a grant in fee, or is a tenant at will or sufferance, he equally claims under the Pueblo. (Bird y. Bistros, supra).

There is no Statute of Limitations, in force in this State, which can affect the right of the plaintiff to recover in this action. (Billinas v. Harvey, 6 Cal. 383; Clarice v. Huber, 25 Cal. 596).

As to the Olds tract the question was determined in Keane v. Canovan, (21 Cal. 304).

Plaintiff’s title, though originating in possession, was not' capable of abandonment as we have already shown. (Ferris y. Coover, 10 Cal. 631; Stephens v. Mansfield, 11 Id. 365; Richardson v. McNulty, 24 Id. 344.)

Abandonment must consist of voluntarily giving up a thing, by one having the intention to abandon it. Intention is of the essence of abandonment. In the legal sense abandonment has a peculiar and technical meaning. The fact of non-user, or the absence of appropriation to some suitable use, will not indicate any intention to abandon as a legal conclusion. (Miller v. Cresson, 5 Watts & Serg. 284). It is not to be presumed from lapse of time. (Patridge v. McKinney, 10 Cal. 183; Crandalls. Woods, 8 Cal. 344; Bird v. Lisbros, 9 Cal. 1; Baiorence v. Fulton, 19 Cal. 691; Richardson v. McNulty et al., 24 Cal. 345; St. John v. Kidd, 26 Cal. 272).

We primarily rest our cause, and ground our argument, upon the soundness of the instruction given in the -Court below on the question of abandonment.

Plaintiffs, not having title, could abandon, even though they held possession under a deed or deeds. The doctrine of feoffment is abandoned long since. (School District v. Bensom, 31 Maine, 384, 485. 4 Kent’s Com. p. 482 to 490; Stevens v. Mansfield, 11 Cal. 363; Keane v. Canovan, 21 Id. 289; Baiorence v. Fulton, 19 Id. 683; Corning v. Coidd, 16 Wend. 543; Holmes v. R. R. 8 Am. Law Peg. 716, 724; Davis v. Reiley, 30 Cal. 634-6; Roberts v. Unger, 30 Id. 676; Gluckauf v. Beecl,. 22 Id. 469; Bichardson v. McNulty, 24 Id. 348; Whitney v. Wright, 15 Wend. 172-178; Jackson v. Walker, 7 Cowen, 637. et seq; Jones v. Merrimack. B. L. Go. 11 Foster N. H. 381, 384; Batcher y. S'hired, 2 Williams 28 Verm. 384.)

The analogy existing between the time prescribed by the Statute of Limitations, and that from the lapse of which an abandonment may be presumed, is admitted by our Courts as well as those of other States. (Benihinger y. Hutchinson, 1 Watts. 46: Gregg y. Blachnore, 10 Watts. 192; Green y. Covillaud, 10 Cal. 324, 331; Pearis v. Covillaud, 6 Id. 621; Broion v. Covillaud, 6 Id. 572; Frenchv. Braintree Mf’g Co., 23 Pick 216).

Concerning the question of possession, see Plume v. Seward, (4 Cal. 96); Laiorence v. Fulton, (supra); Wolf y. Baldwin, (19 Id. 314); Woodworth v. Fulton, (1 Id. 380); BicarJy. Williams, (7 Wheaton, 105); Baldwin y. Simpson, (12 Cal. 560); Corpellv. Cain,.(16 Id. 572); Whiter. Moses, (21 Id. 42); Hestres v. Brannan, (21 Id. 423); Davis y. Perley, (30Id. 630); Border. Bollins, (30 Id. 408); Polaclcv. McGrath, (32 Id. 15); Jackson v. Halsted, (5 Cowen, 220); Jackson v. Schomnalcer, (2 Johns. 230); Livingston y. Peru Iron Co. (9 Wend. 520); Jackson v. Porter, (1 Paine, 457).

Constructive possession is to date not from the date or delivery of a deed, but from the time of actual possession and inclosure. (Hicks v. Coleman, 25 Cal: 122; Ayres v. Bensley, 32 Id. 620),

Constructive possession is all that at the best plaintiffs have shown, and that is insufficient to pass title under the Van Ness ordinance. (Davis v. Perley, 30 Cal. 630).

The possession of the Olds party comes within the case of Wolf v. Baldwin (19 Cal. 306); HaiolcY. Seuseman, (6 Serg and E. 21); for it was actual, continued, visible, notorious, distinct and hostile,

Every error in the trial is prima facie an injury, and it rests with the other party to show that no hurt was done by the error. {Jackson v. Feather Bvrer and O. W. Oo. 14 Cal. 25; Oarpentier v. Williamson, 25 Cal. 167). Erroneous instructions bind all the defendants, and the-effect is not limited to the instructions asked by them severally. The earliest cases which are directly in point here, touching the question of abandonment, are found in Pennsylvania, but all relate to cases of pre-emption either under the State or United States laws. (1 Xeates, 289; Id. 193; 2 Id. 88; Id. 318; 2 S. & E. 378; 5 Id. 215; 2 Watts, 409; 30 Penn. S. & R. 403 ; 43 Id. 427). In all these cases the occupant had no legal right, but a mere equity, which arises out of occupancy, is inseparable from it, and ceases with it. So also in Minnesota in Weisberqer v. lenney, (8 Min. 436).

The Spanish law of abandonment was in force in Missouri until the common law was introduced in 1816. {Landes v. Perkins, 12 Miss. 238. See also Tucker v. Phillips, 2 Met. (Ky.) 416; Dikes v. Miller, 24 Texas, 417.)

“The doctrine of abandonment by non-user, applies only to an easement, and not to the title to the fee.” {Bobie v. Sedgwick, 35 Barb. S. C. N. T. 319; Doe v. Butler, 3 Wen. 149; Arnold v. Stevens, 24 Pick. 113; White v. Qrawford, 10 Mass. 183.)

None can acquire title in the City of San Francisco, under the Statute of Limitations, of land within the Pueblo domain. (See the opinion of Judge Field in McCracken v. The City of San Francisco, 16 Cal. 636).

It is not competent to show by parol that land described in a deed was not intended to be conveyed by it, except in a suit to reform the deed. {Donohue v. McNulty et. al., 24 Cal. 417).

In an action at law it is admissible to show that a deed absolute on its face is a conveyance in trust, and that the party who was in actual possession and occupation was the equitable owner and the cestui que trust of him who held the legal title, (Johnson y. Sherman, 15 Cal. 291; Pierce y. Robinson, supra; Cunningham y. Haiolcins, 27 Cal. 606).

The whole doctrine of abandonment goes upon the idea that the possession continues until there is an intention to relinquish it accompanying the dereliction of possession. (Sunol y. Hepburn, 1 Cal.; Lessee of Bayard y. Colfax et al., 4 Wash. C. C. B. 41; Lessees y. Payne, 4 Wend. 429; Wal-rod y. Ball, 9 Barb. 271; McMahon v. Harrison, 6 N. Y. 2 Seld. 443; Sleeper v. Van Meddlesioorlh, 4 Den. 431; Flanders v. Merritt, 3 Barb. 201; Nixon y. Palmer, 10 Barb. 175.