Aurrecochea

Concurring. — I concur in the opinion and in the judgment. To prevent possible misunderstanding, however, it is perhaps material to observe that the plaintiffs here have no patent, nor any determination of the survey under the act of Congress of June 14, 1860. They have, therefore, no final confirmation of title: Johnson v. Van Dyke, 20 Cal. 225 ; Davis v. Davis, 26 Cal. 46 , 85 Am. Dec. 157 ; Beach v. Gabriel, 29 Cal. 580 ; Mahoney v. Vanwinkle, 33 Cal. 448 .

The possession of the defendant, though held under Wilkinson and Pacheco, was nevertheless adverse as to the title of the plaintiffs: McManus v. O’Sullivan [ 48 Cal. 7 ], January term, 1874, and cases there cited.

At the commencement of the action the defendant had been in the continuous adverse possession of the premises for more than five years, and the action was, therefore, barred by the sixth section of the act of 1855, as amended by the first section of the act of April 18, 1863 (p. 326), unless the right to bring the action was saved to the plaintiffs under the doctrine of the ease of Gardiner v. Miller, 47 Cal. 570 , and the authorities and principles of law there referred to.

It is settled by the case of Gardiner…

— The Mexican claim under which plaintiffs deraign title was not finally confirmed when the act of *865 April 18, 1863, took effect (Stats. 1863, p. 325), nor had a patent for the land been issued when this action was. brought. The defendant was in the adverse possession more than five years before the commencement of the action. If the statute of 1863 is not in conflict with the constitution of the United States, or with a treaty, the defendant was entitled to judgment. No argument is made in the briefs upon the subject of such conflict.

Judgment and order reversed and cause remanded.