Field, C. J.
delivered the opinion of the Court—Baldwin, J. and Cope, J. concurring.
The complaint in this case seeks a recovery of certain premises, situated within Sacramento County, as in an ordinary action of ejectment; and also, an injunction to restrain the commission of [548]*548trespass in the nature of waste, pending the action. This blending of an action at law, with a petition for ancillary relief to the equity side of the Court, is admissible under our system of practice. But to prevent confusion, and preserve the simplicity and directness requisite in the averments of a complaint in an action at law, the grounds of equity interposition should be stated subsequently to, and distinct from, those upon which the judgment at law is sought. It would be the better practice, in such case, to commence that portion of the complaint which seeks the equitable relief, with the form: “ and for equitable relief, pending the above action, the plaintiff further represents •” or, “ and, for a further cause of action, the plaintiff represents.”
The principal acts charged as trespasses, for the restraint of which the injunction is sought, consist in cutting, destroying, and carrying away, wood and growing timber, which are alleged to be of great value for farming, building, and other purposes, and to constitute the chief value of a portion of the premises.
Upon the answers of the defendants, and on their motion the injunction, originally granted on the complaint upon an order to show cause, was dissolved. To recover in the ejectment, the plaintiffs relied upon a grant from the Mexican Government to Win. A. Leidesdorff, from which they derive title. The grant was issued by the Mexican Governor, Mioheltorena, in October, 1844, and the claim under it was presented to the U. S. Board of Land Commissioners for confirmation, and was by the Board adjudged to be valid, and confirmed in June, 1855. The ease being removed by appeal to the United States District Court, the Attorney-General gave notice that the appeal would not be further prosecuted, and upon the stipulation of the District Attorney, in pursuance of such notice, ¡he claimants, by order of the District Court, made in April, 1857, had leave to proceed upon the decree of the Commission, as upon a final decree. The grant, with the accompanying papers, describes the land as lying on the American River, adjoining land previously granted to the colony of Sutter. The decree of the Commission confines the claim, under the grant, to a particular tract, describing it with specific boundaries. On the trial, the plaintiffs gave in evidence, without objection, the petition of Leidesdorff for the land, and the several [549]*549proceedings previous to the issuing of the grant, and then offered a copy of the grant, the decree of the Board, and the order of the District Court—the first two papers certified as correct by the Surveyor-General, and the other by the Clerk of the Court. Previous to the offer, a witness on the part of the plaintiffs testified, that he had seen the original grant in the office of the Surveyor-General, and that it was still there among the archives of the office; and a witness on the part of the defendants, that he had seen the same on file in the office of the Land Commission, and that the papers of the Commission had been sent in 1856, under an Act of Congress, to the office of the Surveyor-General. To the introduction of the copy of the grant objection was made, on the ground, that it was not duly authenticated, and the absence of the original was not accounted for, and to copies of the decrees objection was made that they were irrelevant. The several objections were sustained, and the papers excluded, under the exception of the plaintiffs. Some further evidence being offered and rejected as irrelevant, the plaintiffs consented to take a nonsuit, with leave to move to sot the same aside. The motion subsequently made was overruled, and judgment of nonsuit entered. From the order refusing the motion and the judgment, the appeal is taken.
The point, that the nonsuit, being taken by consent, excludes the consideration of the exceptions, is untenable. The liberty reserved to move to set the same aside, conserved to the plaintiffs all their rights. The course pursued in this case is often adopted, when it is evident, from the rulings of the Court, that the plaintiff cannot recover, and a motion for nonsuit is not made by the adverse party.
The objection to the admission of the certified copy of the grant should have been overruled. The objection was not placed at the trial, on the ground taken in this Court, that the paper does not purport to be a copy of the original, and we must confine our consideration to the specific point urged in the Court below.
By Act of Congress the papers belonging to the United States Board of Land Commissioners were transferred, as stated by one of the witnesses, to the custody of the Surveyor-General for California in 1856; and by the first section of the Act of the [550]*550Legislature of this State “ concerning certified copies of certain instruments in writing,” passed in 1857, (Ses. Laws, Ch. 254,) it is provided that “copies of all papers lately belonging to the United States Board of Commissioners for the settlement of private land claims in California, and on file in the office of the Surveyor-General of the United States for the State of California, and all copies of documents and papers belonging to said Surveyor’s office, which copies shall have been duly certified to be true copies by said Surveyor, shall be received and read in evidence in the same manner and with like effect as the originals.”
The certificate of the Surveyor-General in the present case is that the paper “ is a true and accurate copy of a document” on file in his office. The objection might have been taken that the certificate does not purport that the paper is a copy of an original document, but, as we have observed, no such objection was urged; on the contrary, it appears to have been conceded on the trial that the document referred to -was the original grant, and to show that such original was on file in the office of the Surveyor-General, the witnesses were examined. This being the case, the ruling of the Court was clearly erroneous. The certificate states the paper to be a true copy, and thus complies, in form, with the provisions of the statute.
On what ground the final decree of the Commission and the order of the District Court were held to be irrelevant testimony, we are unable to perceive. The right of the plaintiffs to recover, is based upon the grant of the Mexican Government. The decree of the Commission, rendered final by the withdrawal on the part of the United States of any appeal therefrom, is not only conclusive evidence of the validity of such grant, and of its recognition by the United States, but also of the location of the specific quantity granted. Against its effect, neither the government, or any parties claiming under the government, could ever assert any rights. So far, then, from being irrelevant, the decree with its specific boundaries, and the order of the District Court granting leave to the claimants, under the stipulation of the officers of the government, to proceed thereupon as upon a final decree, were, in the highest sense, relevant and material. They were, in fact, taken in connection with the grant, conclu[551]*551sive of the right of the plaintiffs to recover, provided the premises in controversy were within the ....1------J—1 the title;
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Field, C. J.
delivered the opinion of the Court—Baldwin, J. and Cope, J. concurring.
The complaint in this case seeks a recovery of certain premises, situated within Sacramento County, as in an ordinary action of ejectment; and also, an injunction to restrain the commission of [548]*548trespass in the nature of waste, pending the action. This blending of an action at law, with a petition for ancillary relief to the equity side of the Court, is admissible under our system of practice. But to prevent confusion, and preserve the simplicity and directness requisite in the averments of a complaint in an action at law, the grounds of equity interposition should be stated subsequently to, and distinct from, those upon which the judgment at law is sought. It would be the better practice, in such case, to commence that portion of the complaint which seeks the equitable relief, with the form: “ and for equitable relief, pending the above action, the plaintiff further represents •” or, “ and, for a further cause of action, the plaintiff represents.”
The principal acts charged as trespasses, for the restraint of which the injunction is sought, consist in cutting, destroying, and carrying away, wood and growing timber, which are alleged to be of great value for farming, building, and other purposes, and to constitute the chief value of a portion of the premises.
Upon the answers of the defendants, and on their motion the injunction, originally granted on the complaint upon an order to show cause, was dissolved. To recover in the ejectment, the plaintiffs relied upon a grant from the Mexican Government to Win. A. Leidesdorff, from which they derive title. The grant was issued by the Mexican Governor, Mioheltorena, in October, 1844, and the claim under it was presented to the U. S. Board of Land Commissioners for confirmation, and was by the Board adjudged to be valid, and confirmed in June, 1855. The ease being removed by appeal to the United States District Court, the Attorney-General gave notice that the appeal would not be further prosecuted, and upon the stipulation of the District Attorney, in pursuance of such notice, ¡he claimants, by order of the District Court, made in April, 1857, had leave to proceed upon the decree of the Commission, as upon a final decree. The grant, with the accompanying papers, describes the land as lying on the American River, adjoining land previously granted to the colony of Sutter. The decree of the Commission confines the claim, under the grant, to a particular tract, describing it with specific boundaries. On the trial, the plaintiffs gave in evidence, without objection, the petition of Leidesdorff for the land, and the several [549]*549proceedings previous to the issuing of the grant, and then offered a copy of the grant, the decree of the Board, and the order of the District Court—the first two papers certified as correct by the Surveyor-General, and the other by the Clerk of the Court. Previous to the offer, a witness on the part of the plaintiffs testified, that he had seen the original grant in the office of the Surveyor-General, and that it was still there among the archives of the office; and a witness on the part of the defendants, that he had seen the same on file in the office of the Land Commission, and that the papers of the Commission had been sent in 1856, under an Act of Congress, to the office of the Surveyor-General. To the introduction of the copy of the grant objection was made, on the ground, that it was not duly authenticated, and the absence of the original was not accounted for, and to copies of the decrees objection was made that they were irrelevant. The several objections were sustained, and the papers excluded, under the exception of the plaintiffs. Some further evidence being offered and rejected as irrelevant, the plaintiffs consented to take a nonsuit, with leave to move to sot the same aside. The motion subsequently made was overruled, and judgment of nonsuit entered. From the order refusing the motion and the judgment, the appeal is taken.
The point, that the nonsuit, being taken by consent, excludes the consideration of the exceptions, is untenable. The liberty reserved to move to set the same aside, conserved to the plaintiffs all their rights. The course pursued in this case is often adopted, when it is evident, from the rulings of the Court, that the plaintiff cannot recover, and a motion for nonsuit is not made by the adverse party.
The objection to the admission of the certified copy of the grant should have been overruled. The objection was not placed at the trial, on the ground taken in this Court, that the paper does not purport to be a copy of the original, and we must confine our consideration to the specific point urged in the Court below.
By Act of Congress the papers belonging to the United States Board of Land Commissioners were transferred, as stated by one of the witnesses, to the custody of the Surveyor-General for California in 1856; and by the first section of the Act of the [550]*550Legislature of this State “ concerning certified copies of certain instruments in writing,” passed in 1857, (Ses. Laws, Ch. 254,) it is provided that “copies of all papers lately belonging to the United States Board of Commissioners for the settlement of private land claims in California, and on file in the office of the Surveyor-General of the United States for the State of California, and all copies of documents and papers belonging to said Surveyor’s office, which copies shall have been duly certified to be true copies by said Surveyor, shall be received and read in evidence in the same manner and with like effect as the originals.”
The certificate of the Surveyor-General in the present case is that the paper “ is a true and accurate copy of a document” on file in his office. The objection might have been taken that the certificate does not purport that the paper is a copy of an original document, but, as we have observed, no such objection was urged; on the contrary, it appears to have been conceded on the trial that the document referred to -was the original grant, and to show that such original was on file in the office of the Surveyor-General, the witnesses were examined. This being the case, the ruling of the Court was clearly erroneous. The certificate states the paper to be a true copy, and thus complies, in form, with the provisions of the statute.
On what ground the final decree of the Commission and the order of the District Court were held to be irrelevant testimony, we are unable to perceive. The right of the plaintiffs to recover, is based upon the grant of the Mexican Government. The decree of the Commission, rendered final by the withdrawal on the part of the United States of any appeal therefrom, is not only conclusive evidence of the validity of such grant, and of its recognition by the United States, but also of the location of the specific quantity granted. Against its effect, neither the government, or any parties claiming under the government, could ever assert any rights. So far, then, from being irrelevant, the decree with its specific boundaries, and the order of the District Court granting leave to the claimants, under the stipulation of the officers of the government, to proceed thereupon as upon a final decree, were, in the highest sense, relevant and material. They were, in fact, taken in connection with the grant, conclu[551]*551sive of the right of the plaintiffs to recover, provided the premises in controversy were within the ....1------J—1 the title; the patent would, indeed, save me parties me nocessity of proving anything beyond it, and limit the evidence in the case to matters arising upon mesne conveyances under the original grantee, but so far as the title is concerned—the boundaries of the land being given—its segregation, in other words, from the public domain being made by the decree itself, nothing patent of the United States could further could be required.
It follows, that the judgment must bo reversed, and it only rey mains to consider the question whether the injunction was properly dissolved.
It appears that, upon filing the complaint, an order was issued to the defendants, to show cause why an injunction, as prayed for, should not be issued, and upon the return of the order cause was shown, which being deemed insufficient, the injunction was granted. Subsequently, upon the filing of the answer, a motion for dissolution was made and sustained. In its ruling in this respect the Court below erred. By the statute the right to a temporary injunction pending the action is considered as adjudicated by the decision at the hearing upon tho order to show cause. The remedy of the defendants in such case, when the right to apply for dissolution upon the filing of the answer is not expressly reserved, is by appeal. The privilege of moving for dissolution, upon the filing of the answer, is limited to cases where the injunction is originally granted without notice to the adverse party. (See Practice Act, Sec. 118.)
In the present case no question is made as to the right of the plaintiffs to an injunction upon the undenied allegations of the complaint. In our judgment the right to the preventive remedy was unquestionable. The cutting, destroying, and removing, of growing timber on the premises in controversy constituted, without other matter, sufficient ground for the issuance of the writ.
The judgment must be reversed and the cause remanded for a new trial, and the injunction must be restored until the final determination of the case, when the propriety of dissolving it, [552]*552or of rendering it perpetual, will be determined according- to the judgment in the ejectment.
Ordered accordingly.