ON the 20th of June, 1855, the common council of the city of San Francisco, the legislative body of that city, passed 'An ordinance for the settlement and quieting of the land titles in the city of San Francisco.' This ordinance is generally known in San Francisco as 'The Van Hess ordinance,' after the name of its reputed author. By the second section of the ordinance the city reliquished and granted all her right and claim to the lands within the corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st day of January, 1855, and to their heirs and assigns forever, provided such possession continued up to the time of the introduction of the ordinance into the common council; or, if interrupted by an intruder or trespasser, had been or might be recovered by legal process. This ordinance was ratified by the legislature of the State on the 11th of March, 1858.
At the time this ordinance was passed the city of San Francisco asserted a claim to four square leagues of land, as successor of a Mexican pueblo, established and in existence at the site of the present city, and had presented her claim for the same to the board of commissioners created under the 'act to ascertain and settle the private land claims in the State of California,' of March 3d, 1851, for confirmation, and the board had confirmed the claim for a portion of the land and rejected the claim for the rest. The portion confirmed included the premises in controversy.
One Greeley, having acquired title to certain premises from parties who were in the actual possession of them at the time mentioned in the ordinance, brought the present action, ejectment, in one of the District Courts of the State of California, against two persons whom he found in occupation,-Townsend and Powelson, defendants below,-to oust them. The defendants filed separate answers.
Townsend, after pleading a general denial, averred as a separate answer, in substance, 'that by the treaty of peace between the United States and Mexico, dated at Guadalupe Hidalgo, February 2d, 1848, the ownership and title in fee simple of the lot passed to and became vested in the United States, and that the United States afterwards, by force and effect of the act of the Congress thereof, passed March 3d, 1851, entitled 'An act to ascertain and settle the private land claims in the State of California,' and by force and effect of the final decision and decree of the board of commissioners of said United States, appointed and acting thereunder (upon the petition and claim of the city of San Francisco, presented to and filed before said board in favor of said city), the ownership and title in fee so acquired and held by the United States passed to and vested in the city of San Francisco, and that by divers mesne conveyances, and by force of divers ordinances of the said city, and an act or acts of the legislature of California, the title in fee had, prior to the 28th day of March, A. D. 1862, become, and then was, vested in and held by one Mumford, who executed a lease of the premises to the defendant Powelson, under which Powelson entered and took possession, and has ever since continued, and still is, lawfully, peaceably, and rightfully in possession thereof.' And that all acts done by the defendant Townsend with reference to the premises, have been done as the agent and attorney of the said Mumford, and by his authority, and by the license and permission of the said Powelson, his lessee.
The answer of the other defendant, Powelson, was substantially the same, except that he averred that he held as tenant under Mumford.
On the trial various exceptions were taken to the ruling of the court upon matters relating to the possession of the plaintiff, but the manner in which the matters arose are not stated, because the rulings made thereon are not noticed by the court, for the reasons given in its opinion.
The defendants offered in evidence a certified copy of the petition of the city of San Francisco, filed on the second day of July, A. D. 1852, before the board of United States Land Commissioners, appointed and sitting under the already mentioned act of Congress of March 3, 1851; the said copy being certified to be a true copy of said petition by the United States Surveyor-General of California.