Appeal from a judgment of the late District Court of the twelfth judicial district of the city and county of San Francisco, and from an order refusing a new trial.

The action was brought to quiet the title of the plaintiff to certain land situated in the city and county of San Francisco west of Larkin Street, and within the corporate limits of the city of San Francisco, as defined in the act of the legislature of April 15,1851, incorporating the city, and within the four square leagues of land confirmed to the city, as the successor of the pueblo, by a decree of the United States Circuit Court of May 18,1865. In 1850, the plaintiff entered upon a tract of land including the premises in controversy, and from that time until the 5th of January, 1870, the date of the commencement of this action, continued in the actual, open, and exclusive possession thereof. On the 20th of June, 1855, the common council of the city of S'an Francisco passed an ordinance, No. 822, commonly called the Van Ness ordinance, whereby the city granted and relinquished to the actual settlers thereon all title and claim of the city to the land lying west of Larkin Street and southwest of Johnston Street, reserving streets, and also the right, within six months from the passage of the ordinance, to select therefrom engine-house lots, schoolhouse lots, and public squares, provided the latter should not embrace more than one block, and that not more than one twentieth of the land in the possession of any person should be taken for the purpose without due compensation. No selections were made of any lots or squares by the commissioners mentioned in the ordinance, nor by the city, within six months from the date of its passage. On the 27th of September, 1855, the common council passed another ordinance, No. 845, which ratified and confirmed ordinance No. 822, and provided for the election of commissioners to discharge the duties specified therein, and directed the commissioners and the city surveyor to furnish, within a month from the date of their appointment, a plan for the location of the streets and lots selected under the Van Ness ordinance. By an ordinance approved December 21, 1855, the commissioners were granted until March 20, 1856, to make the selections, and by a similar ordinance, approved April 7,1856, the time was extended until April 20,1856. On the 19th of April, 1856, the commissioners made their report to the common council, accompanied by a map, whereon were laid out six squares, each embracing four blocks, one of which squares, designated as “Alta Plaza,” included a part of the land in controversy, and another, designated as “ Hamilton Square,” included the balance. The land included in such squares embraced more than one twentieth of the whole of the land in the possession of the plaintiff, and no compensation has ever been made or offered to him for the excess. The report and map were received by the board of assistant aider-men, and on the 21st of April, 1856, the report was read and ordered published, and laid over for further consideration. In July, 1856, the governments of the city and of the county of San Francisco were consolidated by an act of the legislature, which provided that the justices of the peace of the former county should constitute an ad interim board of supervisors of the city and county. On the 16th of October, 1856, the justices, acting as a board of supervisors, passed an order adopting the map reported by the commissioners, and declared it to be the map of the city of San Francisco in respect to the location and establishment of streets and avenues, and the reservation of public squares in that portion of the former city lying west of Larkin and southwest of Johnston streets. On March 11,1858, the legislature passed an act ratifying and confirming ordinances Nos. 822 and 845, and the order of the justices of the peace of October 16,1856, and the map therein mentioned. Afterwards, Congress, on the 1st of July, 1864, passed an act relinquishing and granting to the city of San Francisco and its successors all the right and title of the United States to the land within the limits of the city as defined in the act of April 15, 1851, for the uses and purposes specified in the ordinances of the city ratified by the act of the legislature of March 11, 1858. The further. facts are stated in the opinion of the court.