By the Court, Rhodes, J.:
This action was brought to quiet the title of the plaintiff to two pieces of land, one of which forms a part of Alta Plaza, and the other a part of Hamilton Square, as laid down on the maps of the city. The plaintiff claims title under the Van Ress Ordinance and the confirmatory act of March 11, 1858 (Stats. 1858, p. 52), and the act of Congress of July 1, 1864, by which the title of the United States was relinquished and granted to the city for the uses and purposes specified in the act of March 11, 1858, and he also [272]*272claims title by adverse possession. The defense is that the plaintiff did not acquire the Van Ness Ordinance title; that the squares were dedicated as public squares, and that the Statute of Limitations had not run at the time of the commencement of the action, so as to bar the rights secured by the dedication of the squares to public use, or affect the title held by the city.
The proofs show that the plaintiff was in the actual possession of the premises on the 1st day of January, 1855, and so continued up to and after the 20th day of June, 1855; and that the title vested in him under the Van Ness Ordinance and the confirmatory acts, unless the squares were selected and dedicated as public squares. The sixth section of the ordinance provides that the city may lay out and reserve upon the lands west of Larkin street and southwest of Johnston street “public squares, which shall not embrace more than one block, corresponding in size to the adjoining’ blocks; provided that the selection shall be made within six months from the time of the passage of this ordinance,” and that not more than one-twentieth of the land in the possession of any person shall be taken for that purpose without due compensation. The clause of the proviso last mentioned may be dismissed from consideration, as the evidence does not show that more than one-twentieth of the lands of the plaintiff’s grantor were taken for the purposes mentioned in that section. Ordinance No. 845, approved September 27, 1855, provided for the election of commissioners to discharge the duties specified in Ordinance No. 822 (the Van Ness Ordinance), 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 the lots and grounds selected under the Yan Ness Ordinance. The act of March 11, 1858, recites that commissioners were appointed in pursuance of the aforesaid ordinances, and that they, together with the city surveyor, agreed upon and reported for the approval of the Common Council “a plan for the location of streets, public squares and lots for public uses, to be laid out west of Larkin and southwest of Johnston street, in said city, accompanied by [273]*273a map of the same, which said plan and map was by the justices of the peace, exercising the powers of a board of supervisors of the city and county of San Francisco, adopted, approved and ratified by an order bearing date the sixteenth day of October, A. D. one thousand eight hundred and fifty-six.” The order adopted the plan or map reported by the commissioners, and declared it to be “the plan of the city in respect to the location and establishment of streets and avenues, and the reservation of squares and lots for public purposes” in that portion of the city lying west of Larkin and southwest of Johnston streets. The act of March 11,1858, ratified and confirmed the ordinances and the order above mentioned.
It is contended that the order of the justices of the peace was void, on the ground that they could not be invested by the Legislature with power to perform duties of that character; but it is unnecessary to determine that question, for, conceding it to have been void, the question to be determined is, what was the effect of the act of March 11, 1858, in ratifying the ordinances and the order, all of which were void at the time of their adoption; that is to say, void so far as they attempt to convey titles to private persons, and to select and dedicate to public use the squares involved in this case? The act of March 11, 1858, ratifying and confirming the ordinance and order there recited, operated, as we construe it, as a selection and dedication to public use of the squares in controversy, and no other further acceptance by the public, than was afforded by the act, was needed in order to make the dedication complete. It results from this construction of the act, that the plaintiff did not acquire any title to the squares under the operation of the act and the ordinances thereby ratified and confirmed.
The only remaining points we shall notice relate to the Statute of Limitations. The adverse possession commenced in 1853 or 1854; but under the authority of Gardner v. Miller (47 Cal. 570), it must be held that the statute commenced to run in this case upon the passage of the act of Congress of July 1, 1864, granting and relinquishing the title of the United States to the city. The action was com[274]*274menced in 1870. The evidence,xit may be assumed, was sufficient to show that the possession was adverse within the statutory definition, if the statute is applicable to the property in controversy.
The question will be considered in two aspects: 1st, as it relates to the use acquired by the dedication; and, 2d, as to the legal title vested in the city by virtue of the act of Congress of July 1, 1864.
1. When the squares were dedicated in the mode already stated, they were dedicated to public use; and this use did not vest in the city, nor in the inhabitants of the city, but in the public. It requires, I think, no argument to prove this proposition. In this respect it stands like the streets of a city or the highways in a county. (2 Dillon Mun. Corp., Sec. 520, and cases there cited.) The duty, however, of regulating, improving and protecting the squares, is imposed on the city by the statute providing for the city government. The act of Congress of July 1, 1864, did not destroy, or in any respect impair the dedication; but, on the contrary, by granting and relinquishing the title of thellnited States to the city, for the uses and purposes mentioned in the act of March 11, 1858, it ratified and confirmed the dedication, and made it operative upon the legal title as well as such title as the city held prior to the act of July 1, 1864, and thus virtually perfected the dedication.
It may be urged that in view of the fact that the squares were dedicated to public use, the question of the effect thereupon of adverse possession, does not arise in the case. But it is apparent that that is the most important question in controversy, the determination of which is sought and desired by the parties. The arguments of the counsel of' both parties point to that, as the vital question in the case; and it becomes important to the city, in view of its duty in respect to the squares, to have a determination of the question. If the dedication is extinguished, the city has no right to enter to make improvements or protect the property for public use. When lands have been held adversely under such circumstances and for such a period, that the title held by a private person, or by a municipality, or by [275]*275the State as a private proprietor, would be extinguished under the operation of the Statute of Limitations, will such adverse possession also extinguish a public use if the lands have been dedicated to that purpose—will it also bar the rights which the public gained by the dedication? We are of the opinion that the question must be answered in the negative.
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By the Court, Rhodes, J.:
This action was brought to quiet the title of the plaintiff to two pieces of land, one of which forms a part of Alta Plaza, and the other a part of Hamilton Square, as laid down on the maps of the city. The plaintiff claims title under the Van Ress Ordinance and the confirmatory act of March 11, 1858 (Stats. 1858, p. 52), and the act of Congress of July 1, 1864, by which the title of the United States was relinquished and granted to the city for the uses and purposes specified in the act of March 11, 1858, and he also [272]*272claims title by adverse possession. The defense is that the plaintiff did not acquire the Van Ness Ordinance title; that the squares were dedicated as public squares, and that the Statute of Limitations had not run at the time of the commencement of the action, so as to bar the rights secured by the dedication of the squares to public use, or affect the title held by the city.
The proofs show that the plaintiff was in the actual possession of the premises on the 1st day of January, 1855, and so continued up to and after the 20th day of June, 1855; and that the title vested in him under the Van Ness Ordinance and the confirmatory acts, unless the squares were selected and dedicated as public squares. The sixth section of the ordinance provides that the city may lay out and reserve upon the lands west of Larkin street and southwest of Johnston street “public squares, which shall not embrace more than one block, corresponding in size to the adjoining’ blocks; provided that the selection shall be made within six months from the time of the passage of this ordinance,” and that not more than one-twentieth of the land in the possession of any person shall be taken for that purpose without due compensation. The clause of the proviso last mentioned may be dismissed from consideration, as the evidence does not show that more than one-twentieth of the lands of the plaintiff’s grantor were taken for the purposes mentioned in that section. Ordinance No. 845, approved September 27, 1855, provided for the election of commissioners to discharge the duties specified in Ordinance No. 822 (the Van Ness Ordinance), 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 the lots and grounds selected under the Yan Ness Ordinance. The act of March 11, 1858, recites that commissioners were appointed in pursuance of the aforesaid ordinances, and that they, together with the city surveyor, agreed upon and reported for the approval of the Common Council “a plan for the location of streets, public squares and lots for public uses, to be laid out west of Larkin and southwest of Johnston street, in said city, accompanied by [273]*273a map of the same, which said plan and map was by the justices of the peace, exercising the powers of a board of supervisors of the city and county of San Francisco, adopted, approved and ratified by an order bearing date the sixteenth day of October, A. D. one thousand eight hundred and fifty-six.” The order adopted the plan or map reported by the commissioners, and declared it to be “the plan of the city in respect to the location and establishment of streets and avenues, and the reservation of squares and lots for public purposes” in that portion of the city lying west of Larkin and southwest of Johnston streets. The act of March 11,1858, ratified and confirmed the ordinances and the order above mentioned.
It is contended that the order of the justices of the peace was void, on the ground that they could not be invested by the Legislature with power to perform duties of that character; but it is unnecessary to determine that question, for, conceding it to have been void, the question to be determined is, what was the effect of the act of March 11, 1858, in ratifying the ordinances and the order, all of which were void at the time of their adoption; that is to say, void so far as they attempt to convey titles to private persons, and to select and dedicate to public use the squares involved in this case? The act of March 11, 1858, ratifying and confirming the ordinance and order there recited, operated, as we construe it, as a selection and dedication to public use of the squares in controversy, and no other further acceptance by the public, than was afforded by the act, was needed in order to make the dedication complete. It results from this construction of the act, that the plaintiff did not acquire any title to the squares under the operation of the act and the ordinances thereby ratified and confirmed.
The only remaining points we shall notice relate to the Statute of Limitations. The adverse possession commenced in 1853 or 1854; but under the authority of Gardner v. Miller (47 Cal. 570), it must be held that the statute commenced to run in this case upon the passage of the act of Congress of July 1, 1864, granting and relinquishing the title of the United States to the city. The action was com[274]*274menced in 1870. The evidence,xit may be assumed, was sufficient to show that the possession was adverse within the statutory definition, if the statute is applicable to the property in controversy.
The question will be considered in two aspects: 1st, as it relates to the use acquired by the dedication; and, 2d, as to the legal title vested in the city by virtue of the act of Congress of July 1, 1864.
1. When the squares were dedicated in the mode already stated, they were dedicated to public use; and this use did not vest in the city, nor in the inhabitants of the city, but in the public. It requires, I think, no argument to prove this proposition. In this respect it stands like the streets of a city or the highways in a county. (2 Dillon Mun. Corp., Sec. 520, and cases there cited.) The duty, however, of regulating, improving and protecting the squares, is imposed on the city by the statute providing for the city government. The act of Congress of July 1, 1864, did not destroy, or in any respect impair the dedication; but, on the contrary, by granting and relinquishing the title of thellnited States to the city, for the uses and purposes mentioned in the act of March 11, 1858, it ratified and confirmed the dedication, and made it operative upon the legal title as well as such title as the city held prior to the act of July 1, 1864, and thus virtually perfected the dedication.
It may be urged that in view of the fact that the squares were dedicated to public use, the question of the effect thereupon of adverse possession, does not arise in the case. But it is apparent that that is the most important question in controversy, the determination of which is sought and desired by the parties. The arguments of the counsel of' both parties point to that, as the vital question in the case; and it becomes important to the city, in view of its duty in respect to the squares, to have a determination of the question. If the dedication is extinguished, the city has no right to enter to make improvements or protect the property for public use. When lands have been held adversely under such circumstances and for such a period, that the title held by a private person, or by a municipality, or by [275]*275the State as a private proprietor, would be extinguished under the operation of the Statute of Limitations, will such adverse possession also extinguish a public use if the lands have been dedicated to that purpose—will it also bar the rights which the public gained by the dedication? We are of the opinion that the question must be answered in the negative. The Statute of Limitations was not intended as a bar to the assertion by the public of rights of that character. There are many authorities opposed to this view, but there are others which sustain it, among which are Commonwealth v. Alberger, 1 Whart. 486; Rung v. Shoenberger, 2 Watts, 23; Commonwealth v. McDonald, 16 Serg. & R. 395; Baxter v. Commonwealth, 3 Pa. 253; Penny Pot Landing Case, 16 Pa. St. 94; Jersey City v. Morris Canal Co., 1 Beas. (N. J.) 227; Jersey City v. State, 1 Vroom, 521. Those cases are, in our opinion, sustainable on principle, and, in our judgment, lay down the better rule on this question.
2. The legal title to the squares, as already stated, vested in the city by the operation of the act of Congress of July 1, 1864. Admitting it to be true, that ordinarily the statute of five years is applicable in respect to lands to which the city holds the title, as was decided in this Court in Calderwood v. San Francisco (31 Cal. 588), is that statute applicable in this case ? Was the legal title which the city held extinguished by the adverse possession of the plaintiff for a period of five years after the passage of the act of Congress of July 1, 1864? The title which the United States held in the land, and which was transferred to the city by the act of Congress, was so transferred to the city in trust, for the purposes expressed in the statute of March 11, 1858, above referred to, and for no other purpose. That is to say, the title was granted to the city in trust, for public use; and the city had no authority, by virtue either of the statute of March 11, 1858, or of the act of Congress of July 1, 1864, to alienate or in any manner dispose of it, but only to hold it for the purposes expressed in the statute. ' It was granted to the city for public use, and is held for that purpose only. It cannot be conveyed to private persons, and is effectually withdrawn from commerce; and the city hav[276]*276ing no authority to convey the title, private persons are virtually precluded from acquiring it. The land itself, and not the use only, was dedicated to the public. Land held for that purpose, whether held by the State or a municipality, in our opinion, is not subject to the operation of the Statute of Limitations.
Judgment and order reversed and cause remanded for a new trial.