By the Court, Rhodes, J.:
The plaintiff was nonsuited upon his opening statement. It appears therefrom that the plaintiff entered into the actual possession of the premises in controversy in Hovem[284]*284her, 1846, and so remained in possession for about one year; that during his temporary absence a party of ■ soldiers, pretending to act on behalf of the United States, but really without authority, entered upon the premises, destroyed the plaintiff’s house thereon, and the military, in command at San Francisco, retained the possession of the premises; that the plaintiff endeavored to regain the possession, but was always prevented from so doing; that the defendants succeeded to the possession, and were in the actual possession thereof on the first day of January, 1850, claiming the same in their own right, and adversely to the plaintiff, and have ever since remained in such possession. The premises are a portion of the pueblo lands of the pueblo of San Francisco, and are a part of the lands described in the act of March 11th, 1858, ratifying and confirming the Van Hess Ordinance (Stats, of 1858, p. 52), and a part also of the lands mentioned in the Act of Congress of July 1st, 1864, confirming the same ordinance (13 U. S. Stats. 332).
The plaintiff claims that by means of those acts, and the operation of the statutes above referred to, he acquired the title in fee to the premises. By the 5th section of the act of Congress of July 1st, 1864, all the right and title of the United States to the lands within the corporate limits of San Francisco, as defined by the Act of April 15th, 1851, with certain exceptions therein named, were relinquished and granted to the city “ for the uses and purposes specified in the ordinances of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, 1858, entitled an act concerning the city of San Francisco, and to ratify and confirm certain ordinances óf the Common Council of the city.’”
One of the ordinances referred to in that act is an ordinance which is commonly known as the Van Hess Ordinance. That ordinance having been ratified and confirmed by the Act of March 11th, 1858, took effect by relation, as of the date of its passage. The plaintiff’s position is that he took whatever right, title or interest the city then held, and intended to transfer by the ordinance, and that therefore he is one of the persons for whose use the right and title of [285]*285the United States was relinquished and granted to the city, by®the Act of Congress of July 1st, 1864.
The right, title or interest which was transferred by virtue of the ordinance, may, for convenience, be denominated the Van Hess Ordinance title. The beneficiaries provided for by the ordinance may be divided into four classes: First, those who held title by virtue of the grants and conveyances enumerated in the ordinance; second, those who were in the actual possession, by themselves or by their tenants, on the first day of January, 1855, and so continued up to the twentieth day of June, 1855; third, those whose possession had been “ interrupted by an intruder or trespasser, ” and “had been recovered by legal process;” and fourth, those whose possession had been “interrupted by an intruder and trespasser,” and “may be recovered by legal process.” The plaintiff, if entitled to benefits of the ordinance, falls within the fourth class.
The defendants having been in the actual possession of the premises on the first day of January, 1855, claiming adversely to the plaintiff, and having continued in possession from thence up to the 20th day of June, 1855, and up to the commencement of this action, are prima facie entitled to the Van Hess Ordinance title; and the plaintiff, in order to show that he is entitled to the benefits of the ordinance, and acquired that title, must make it appear not only that his possession was “interrupted by an intruder or trespasser” —that is to say, that he ivas ousted from the possession— but also that the possession from which he was ousted “may be recovered by legal process.” The question as to whether he is entitled to the benefits of the ordinance, depends upon the construction to be given to the language of the ordinance, “ may be recovered by legal process.” By the words “legal process” is meant an action brought in a Court of competent jurisdiction. The only difficult matter for construction is the words “may be recovered;” and the question arising upon those words is whether they import a right of recovery only, or a recovery in fact—that is to say, whether the Van Hess Ordinance title devolved upon the person who then possessed the right of recovery as against [286]*286an intruder or trespasser, or whether it vests in the person who in fact recovers the possession from such intruder or trespasser. , We are of the opinion that those words mean, when read with the other words of the section, “shall be recovered.” The purpose of the ordinance, as we construe it, was to give the Van Ness Ordinance title to those who had already recovered the possession from an intruder or trespasser, and to those who should thereafter recover the possession from an intruder or trespasser. The recovery contemplated by that provision, was not one which might be had on one of the grants or conveyances, mentioned in the second section of the ordinance, for the persons holding title by virtue of such grants and conveyances, were deemed to be in possession of the lands thereby granted and conveyed, and the Van Ness Ordinance title vested in them immediately upon the taking effect of the ordinance; but the recovery was one which was to be had upon some right or title other than such grants and conveyances. In respect to the first three classes of beneficiaries, as above enumerated, the ordinance makes possession, or that which is declared or would be deemed in law, equivalent to possession, the fact or condition, by virtue of which the Van Ness Ordinance title vests in the grantee; and we are of the opinion that it was contemplated by the ordinance, that those who are comprehended in the fourth class should also have a recovery, by means of which they, like those holding-title by virtue of the grants and conveyances, should be deemed to be in possession of the land recovered. As to the persons of the fourth class, the recovery of the possession occupies the place, and stands in the stead, of the actual possession which those of the second class are required to have—it is the fact, the condition, by virtue of which the Van Ness Ordinance title vests in them. Had it been the intention to give that title to those who then had only the right of recovery, it is unaccountable that it should not have been so expressed in the ordinance, instead of saying that it should vest in those who then had recovered, or those who may recover. The expression, “has been recovered or may be recovered,’’was employed to denote past [287]*287recoveries and future recoveries, but neither in the one sense more than the other, do the words signify merely the right of recovery.
If this be the proper construction of the ordinance, the Van Ness Ordinance title has not vested in the plaintiff, and, of course, he cannot rely on it for a recovery in this action. The ordinance declares, in effect, that a person included in the fourth class, who shall recover the possession of the lands from which he was ousted, shall have the Van Ness Ordinance title, but does not declare, nor can it be inferred therefrom, that he shall receive that title not only as the fruits, but also for the purpose, of a recovery.
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By the Court, Rhodes, J.:
The plaintiff was nonsuited upon his opening statement. It appears therefrom that the plaintiff entered into the actual possession of the premises in controversy in Hovem[284]*284her, 1846, and so remained in possession for about one year; that during his temporary absence a party of ■ soldiers, pretending to act on behalf of the United States, but really without authority, entered upon the premises, destroyed the plaintiff’s house thereon, and the military, in command at San Francisco, retained the possession of the premises; that the plaintiff endeavored to regain the possession, but was always prevented from so doing; that the defendants succeeded to the possession, and were in the actual possession thereof on the first day of January, 1850, claiming the same in their own right, and adversely to the plaintiff, and have ever since remained in such possession. The premises are a portion of the pueblo lands of the pueblo of San Francisco, and are a part of the lands described in the act of March 11th, 1858, ratifying and confirming the Van Hess Ordinance (Stats, of 1858, p. 52), and a part also of the lands mentioned in the Act of Congress of July 1st, 1864, confirming the same ordinance (13 U. S. Stats. 332).
The plaintiff claims that by means of those acts, and the operation of the statutes above referred to, he acquired the title in fee to the premises. By the 5th section of the act of Congress of July 1st, 1864, all the right and title of the United States to the lands within the corporate limits of San Francisco, as defined by the Act of April 15th, 1851, with certain exceptions therein named, were relinquished and granted to the city “ for the uses and purposes specified in the ordinances of said city, ratified by an act of the Legislature of the said State, approved on the eleventh of March, 1858, entitled an act concerning the city of San Francisco, and to ratify and confirm certain ordinances óf the Common Council of the city.’”
One of the ordinances referred to in that act is an ordinance which is commonly known as the Van Hess Ordinance. That ordinance having been ratified and confirmed by the Act of March 11th, 1858, took effect by relation, as of the date of its passage. The plaintiff’s position is that he took whatever right, title or interest the city then held, and intended to transfer by the ordinance, and that therefore he is one of the persons for whose use the right and title of [285]*285the United States was relinquished and granted to the city, by®the Act of Congress of July 1st, 1864.
The right, title or interest which was transferred by virtue of the ordinance, may, for convenience, be denominated the Van Hess Ordinance title. The beneficiaries provided for by the ordinance may be divided into four classes: First, those who held title by virtue of the grants and conveyances enumerated in the ordinance; second, those who were in the actual possession, by themselves or by their tenants, on the first day of January, 1855, and so continued up to the twentieth day of June, 1855; third, those whose possession had been “ interrupted by an intruder or trespasser, ” and “had been recovered by legal process;” and fourth, those whose possession had been “interrupted by an intruder and trespasser,” and “may be recovered by legal process.” The plaintiff, if entitled to benefits of the ordinance, falls within the fourth class.
The defendants having been in the actual possession of the premises on the first day of January, 1855, claiming adversely to the plaintiff, and having continued in possession from thence up to the 20th day of June, 1855, and up to the commencement of this action, are prima facie entitled to the Van Hess Ordinance title; and the plaintiff, in order to show that he is entitled to the benefits of the ordinance, and acquired that title, must make it appear not only that his possession was “interrupted by an intruder or trespasser” —that is to say, that he ivas ousted from the possession— but also that the possession from which he was ousted “may be recovered by legal process.” The question as to whether he is entitled to the benefits of the ordinance, depends upon the construction to be given to the language of the ordinance, “ may be recovered by legal process.” By the words “legal process” is meant an action brought in a Court of competent jurisdiction. The only difficult matter for construction is the words “may be recovered;” and the question arising upon those words is whether they import a right of recovery only, or a recovery in fact—that is to say, whether the Van Hess Ordinance title devolved upon the person who then possessed the right of recovery as against [286]*286an intruder or trespasser, or whether it vests in the person who in fact recovers the possession from such intruder or trespasser. , We are of the opinion that those words mean, when read with the other words of the section, “shall be recovered.” The purpose of the ordinance, as we construe it, was to give the Van Ness Ordinance title to those who had already recovered the possession from an intruder or trespasser, and to those who should thereafter recover the possession from an intruder or trespasser. The recovery contemplated by that provision, was not one which might be had on one of the grants or conveyances, mentioned in the second section of the ordinance, for the persons holding title by virtue of such grants and conveyances, were deemed to be in possession of the lands thereby granted and conveyed, and the Van Ness Ordinance title vested in them immediately upon the taking effect of the ordinance; but the recovery was one which was to be had upon some right or title other than such grants and conveyances. In respect to the first three classes of beneficiaries, as above enumerated, the ordinance makes possession, or that which is declared or would be deemed in law, equivalent to possession, the fact or condition, by virtue of which the Van Ness Ordinance title vests in the grantee; and we are of the opinion that it was contemplated by the ordinance, that those who are comprehended in the fourth class should also have a recovery, by means of which they, like those holding-title by virtue of the grants and conveyances, should be deemed to be in possession of the land recovered. As to the persons of the fourth class, the recovery of the possession occupies the place, and stands in the stead, of the actual possession which those of the second class are required to have—it is the fact, the condition, by virtue of which the Van Ness Ordinance title vests in them. Had it been the intention to give that title to those who then had only the right of recovery, it is unaccountable that it should not have been so expressed in the ordinance, instead of saying that it should vest in those who then had recovered, or those who may recover. The expression, “has been recovered or may be recovered,’’was employed to denote past [287]*287recoveries and future recoveries, but neither in the one sense more than the other, do the words signify merely the right of recovery.
If this be the proper construction of the ordinance, the Van Ness Ordinance title has not vested in the plaintiff, and, of course, he cannot rely on it for a recovery in this action. The ordinance declares, in effect, that a person included in the fourth class, who shall recover the possession of the lands from which he was ousted, shall have the Van Ness Ordinance title, but does not declare, nor can it be inferred therefrom, that he shall receive that title not only as the fruits, but also for the purpose, of a recovery.
When such a person has only a prior possession, as the ground upon which to recover the possession from the trespasser or intruder, his rights and his remedies are measured by tlie-same rules that they would be in an action brought for the recovery of the possession of lands situated without said city, and in which the plaintiff relied solely on prior possession. The plaintiff’s opening statement shows only one ground upon which he can claim a right of recovery in this action, and that is his prior possession. The statute of March 11th, 1858, gave him no new or additional ground of recovery. It mérely ratified and confirmed the ordinance, leaving it in all respects, so far as regards the matters here involved, as it would have been had the Common Council, at (the time of the passage of the ordinance, possessed competent authority to dispose of the right, title, or interest of the city in or to the lands within its corporate limits, in the mode adopted by the ordinance. Nor does the plaintiff derive any aid in the solution of the question here involved from the Act of Congress of July 1st, 1864. The right, title, interest, or estate in, or power over, those lands which the city held, prior to the passage of the Act of Congress, she held subject to the control of the Legislature of the State alone; and Congress could not control the city in that respect, in any manner, or for any purpose whatsoever. The act of Congress merely relinquished and granted to the city, for the uses and purposes specified in the ordinance, whatever right or title the United States then held in or to the lands [288]*288within the corporate limits of the city, etc. It is unnecessary, for the purposes of this case, to determine what right or title the United States then held, or what right, title, interest, estate, or power in or over the lands the city held at the time of the passage of the Act of Congress; but whatever right or title, in any parcel of those lands the United States then held, passed to the city for &e use and benefit of the persons entitled to the Van Ness Ordinance title, if there was any person so entitled.
The sole ground, as already stated, upon which the plaintiff can rely for a recovery, is his prior possession; and if he fails in that, the nonsuit was right. The defendants were in the actual possession of the premises on and before the first day of January, 1855, and so remained from that time up to the time of the commencement of this action— the seventeenth day of April, 1868—holding adversely to the plaintiff, and they set up the Statute of Limitations. The statute commenced running on the eleventh day of April, 1855, the day of the passage of the amendatory statute, and had fully run when this action was commenced.
If the construction we have given to the ordinance be maintainable, the Statute of Limitations is as applicable here as to a case in which the controversy turns on the relative right of the parties growing out of the prior possession of one party and the adverse possession of the other party, of lands situated without the city of San Francisco. "We see nothing in the case which leads to the conclusion that the Statute of Limitations is not applicable. Had the ordinance provided that the YanNess Ordinance title should vest in the person who should recover from an intruder or trespass!’ in an action to be commenced within a designated time, can it be doubted that a person claiming the benefits of the ordinance must have commenced his action within the designated time? There is nothing in the ordinance which gives a further or other time for the commencement of an action than is prescribed by the Statute of Limitations, nor can it be inferred therefrom that it was intended that such statute should not be applicable to actions that might be brought to recover the possession of the lands [289]*289from an intruder or trespasser. The Act of Congress of July 1, 1864, does not have the effect to prevent the running of the statute, or to fix a new time from which the statute would begin to rnn in cases of this character. Had the plaintiff acquired the Van Ness Ordinance title before the passage of the Act, then the question might arise whether he could be barred of his action until five years after the passage of the Act; but that question does not arise here, for that Act merely relinquished and granted to the city whatever right and title the United States had, for the uses and purposes specified in the ordinance; and the plaintiff cannot claim the benefit of the Act until he brings himself within the ordinance by a recovery of the possession as therein provided for. In Montgomery v. Bevans, 1 Sawyer, 653, both parties claimed under Alcalde’s grants— the one issued in 1846, and the other in 1847, and both prior to the treaty, and the Van Ness Ordinance title had vested in the plaintiff; but the question there considered does not arise here, for the plaintiff, as we have seen, must rely for a recovery upon prior possession alone.
Our conclusion upon this point is, that a person who comes within the fourth class of the beneficiaries provided for by the ordinance, and who at its passage had no other right or title than such as proceeded from prior possession, and who sues an intruder or trespasser to recover the possession of lands, in order to entitle himself to the Tan Ness Ordinance title, must have commenced his action within the time prescribed by the Statute of Limitations; and that the statute commenced running in this case upon the passage of the Statute of Limitations of April 11th, 1855; and that more than five years having elapsed, after that date, before the action was commenced, and the defendants, during all that time, holding the possession adversely to the plaintiff, the action is barred by the statute.
Judgment affirmed.