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

Ejectment to recover fifty-vara lot, 1,476, in the city and county of San Francisco. The answer set up the Statute of Limitations, as follows:

“For a further and separate answer defendant says, that neither the said plaintiff, nor his ancestors, predecessors or grantors, were Seized or possessed of the premises in the said complaint described, or any part thereof, at any time within five years before the commencement of this action.

“For a further defense herein, the said defendant says that he and those under whom he claims, have had continuous, quiet, peaceable and undisturbed possession of the premises in the complaint described, and of every part thereof, holding the same under good and valid title adversely to the said plaintiff, his ancestors, predecessors or grantors, and to all the world, for more than five years prior to the commencement of this action.”

The Hawes Limitation Act, mentioned in the opinion, provided, that in any action which shall be commenced more than one year after this Act takes effect for the recovery of real property in the city and county of San Francisco, none of the provisions of the Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of said city, passed March 11th, 1858, and none of the provisions of the ordinances therein recited, shall be deemed to have any effect, or give or confirm the right or title claimed by any party, unless such party, his ancestor, predecessor, or grantor, shall have had possession within five years before the commencement of the action. The defendants went into possession of the premises in 1861. The action was commenced in 1868.

The evidence showed that the premises in suit had been inclosed in 1850 by the plaintiff’s grantors; that the fence was made of posts and wires—four wires put through each post; that it would not turn goats and hogs but would turn large cattle; that the plaintiff’s grantors built an observatory within the fence, which became a place of public resort and a space was opened in the fence for a carriageway; that the fence was sometimes broken down in places and was generally repaired. The plaintiff bought the premises on the 17th day of February, 1859. The case was tried by the Court without a jury. The defendant Thompson moved for a nonsuit, which was denied. ' The other defendants were defaulted. Judgment was rendered for the plaintiff; the defendant Thompson moved for a new trial; the motion was denied, and he appealed from the judgment and from the order denying his motion for a new trial.

The other facts are stated in the opinion.