This is an action of ejectment to recover the possession of the north-west quarter of the north-west quarter of section 33, town 3, north of range 6 east, Mount Diablo base and meridian. The plaintiff claims title under a patent issued by the United States to the Western Pacific Railroad Company, on the 9th day of April, 1870, in pursuance of the Acts of Congress of July 1, 1862, July 2, 1864, and March 3, 1865, and the joint resolution of May 21, 1866, to aid in the construction of a railroad and telegraph line, from the Missouri river to the Pacific ocean. The land is within the twenty-mile limits, on each side of the road, and within the limits of the reservation made by the Commissioner of the General Land Office on the 23d day of December, 1864.

The land is within the exterior limits of an alleged Mexican grant of eleven leagues of land, called the “Los Moquelumnes,” and claimed by Andreas Pico, who executed to the defendant a deed purporting to convey the land. The claim of Pico was finally rejected by the Supreme Court of the United States, on the 13th day of February, 1865. The defendant has been in the possession of the land since 1865, and after the passage of the Act of Congress of July 23, 1866, he made proof of his claim in compliance with said Act, and paid for the land, and on the 5th day of October, 1871, the United States issued to him a patent therefor.

The action was tried by the Court, without a jury, and the Court, without filing any findings of fact, decided for the defendant, and judgment was entered accordingly; and afterwards the plaintiff’s motion for a new trial was denied.

The question involved in the case is, whether lands *445 claimed under a grant made by the Mexican Government, the claim to which was pending in the Courts of the United States, when the Acts of Congress to aid in the construction of the railroad above referred to were passed, and which was finally rejected by the Supreme Court of the United States, were reserved from the grant of lands to the railroad company.

The Act of July 1, 1862, grants “ every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile, on each side of said railroad on the line thereof, and within the limits of ten miles on each side of said road,- not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed.”

The Act of July, 2, 1864, provides that the lands granted “ shall not defeat or impair any pre-emption, homestead, swamp land or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler,” etc.

The only words in these Acts upon which the defendant can rely as excluding the lands in this case from the grant to the railroad, are the words “reserved * * * by the United States,” in the Act of 1862; and the words “ any Government reservation,” in the Act of 1864; that is to say, if the lands are not reserved by the United States, or did not form a portion of a Government reservation, they were included in the grant to the railroad.

In our opinion, the lands are not reserved by the United States, nor did they constitute a portion of a Government reservation, within the meaning of the words of the Act of Congress above mentioned.

It is unnecessary at this time, to enter upon an argument to sustain this construction of the Acts of Congress; for there are many tracts of land in this State, the title to which depends upon the interpretation to be given to those Acts; and the parties in interest, it may be assumed, will apply to the appropriate tribunal, the Supreme Court of the United States, for a final determination of the question.

*446 There being no finding, nor an agreed statement of the facts upon which the plaintiff’s title depends, and the implied findings being in favor of defendant—the cause having been tried before the Code of Civil Procedure took effect—judgment cannot be ordered to be entered in favor of the plaintiff, without a violation of a well recognized rule of practice.

Judgment and order reversed, and cause remanded for a new trial.