By the Court, Rhodes, J.:
In 1860 Maria T. P. de Castro, one of the defendants in this action, commenced an action against the present plaintiff and others, to recover the, possession of portions of the Rancho Pastoría de los Borregas, of which she claimed to be the owner under a grant from the Mexican CoAernment, and in 1862 she recovered judgment, and in 1864 was put in possession, and she and her tenants, the other defendants to this action, have held the possession since that time. The grant was for two leagues Avithin the exterior lines of the tract described in the grant, containing a larger quantity of land. The title of Maria T. P. de Castro was confirmed, and after she was put in possession under her judgment against the present plaintiff and others, the lines of her grant were surveyed and finally established under the authority of the United States, and the grant as surveyed, excluded the lands in controversy in this suit. The plaintiff sues to recover the possession of the lands from which he was ejected under the judgment, and the rents and profits of the lands from the time of the survey of the rancho, and certain damages for alleged injuries groAving out of the action. He seeks this remedy under the provisions of the Act of 1858, entitled “An Act for the better protection of settlers on public lands in this State, and to secure the rights of parties in certain cases.” (Stats. 1858, p. 345.)
The Act provides that a person ousted from the .possession of land in an action at law, by a person claiming title under [108]*108a foreign grant, which shall thereafter he rejected, or so located as not to include the land recovered, may have his action against the plaintiff in the former action, and .the person in possession of the land, to recover hack the possession of the land together with the rents and profits thereof from the time he was so ousted, and the costs and damages sustained by reason of the former action of ejectment. The ruling of the Court in sustaining the demurrer to the complaint, raises the question of the constitutionality of the Act.
The grant in this case, it was admitted, was in the usual form of Mexican grants in California, and was held by the plaintiff in the former action, and she did not claim title through any other source. While she was the holder of that title, and prior to the survey and segregation of the two leagues called for by the grant, she was entitled to the possession of the entire tract within the exterior limits designated in the grant. This was so held in Ferris v. Coover, 10 Cal. 589, and affirmed in many subsequent cases, among which are Cornwall v. Culver, 16 Cal. 423; Riley v. Heisch, 18 Cal. 198; Mahoney v. Van Winkle, 21 Cal. 552; Carpentier v. Thurston, 24 Cal. 268. Grants of this character confer a vested interest in the specific quantity of land designated, and though such title does not become attached to any particular parcel of the larger tract, until a survey of the specific quantity is made by the officers of the General Government, the grantee, his heirs and assigns are entitled to the possession of the whole tract out of which the quantity granted is to be taken, as against those entering without title, until such time as the specific quantity is segregated. This right is not a mere naked barren right of possession; but as a necessary incident to the right of possession, the holder of the grant is entitled to the use and enjoyment, and the rents and profits of the land.
The present plaintiff, anterior to the Government survey, was a mere naked trespasser. He held no right in the land, and was not authorized by any law to make an entry, and consequently his tortious entry did not entitle him to the [109]*109possession or to the rents and profits of the land, or vest in him any right therein.
When the survey is made and the specific quantity is set off to the holder of the grant, the surplus comprised within the exterior boundaries, becomes public land. It is then, for the first time, open for settlement in the same manner as other public lands of the United States. At this point of time the statute of 1858, above mentioned, is invoked by the person who had entered and had afterward been ousted under a judgment in favor of the holder of the grant, from the lands which by the survey are excluded from the grant.
The statute cannot be maintained as conferring the right of possession, for the lands being public lands of the United States the right to the possession comes from the United States alone. The State can give a right of entry only where she claims as owner in her own right, or as the grantee of the General Government. The statute can be upheld only on the ground that it conserves the right of possession already held and affords a remedy for its violation. But no one was entitled to the possession before the survey, except those holding under the grant. The person who entered upon the land, in hostility to • the grant, before the particular quantity-granted was segregated from the larger area, took nothing by his entry, and he had no right therein to be protected by the statute. He can acquire no right therein until he has entered upon or purchased the land according to the laws of the United States. Had he remained in possession until the survey, the grantee could not maintain ejectment against him, for upon the survey being made the grantee’s title to the surplus expired; but the settler’s right commenced when the survey was made, and had its origin in the fact of his possession on and after that time. If it is urged that the grantee remaining in possession of the surplus lands of the survey is a trespasser, the answer is, that is a matter between him and the General Government; and admitting that he is a trespasser, that fact does not make the settler’s entry, which was tortious as to the grantee when it occurred, rightful by rela[110]*110tion, and. convert it into a source of title. "When it is admitted or found, that the settler held no right in the land at the time he was ejected under the judgment, at the suit of the holder of the grant, who was entitled to the possession, and that the settler has not subsequently acquired any right therein, the conclusion is inevitable—and no process of reasoning will lend any strength to it—that the Legislature of the State has no authority to empower him to recover the possession from any one, and that the Act in question, in so far as it purports to enable him to recover the possession, is unconstitutional and void.
The provisions of the Act, authorizing the defendant in the former action to recover the rents and profits of the land from the time he was ousted under the judgment, are also invalid. The plaintiff in that action being entitled to the possession of the land from the time of the recovery of the possession up to the survey of the rancho, was necessarily entitled to the rents and profits of the land during that period; and after that time, she and those claiming under her, while in possession, are entitled to the rents and profits until some one shows a better right to the possession. It "will not be contended that the Legislature has the power to transfer the property of one person, without his consent, to another; and it makes no difference in this respect whether the object is attempted to be accomplished directly or indirectly. The objection is as insuperable, when the object is attempted to be accomplished by indirection, as in this case, by creating a responsibility for the use and enjoyment of the property, to one who has no right therein.
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By the Court, Rhodes, J.:
In 1860 Maria T. P. de Castro, one of the defendants in this action, commenced an action against the present plaintiff and others, to recover the, possession of portions of the Rancho Pastoría de los Borregas, of which she claimed to be the owner under a grant from the Mexican CoAernment, and in 1862 she recovered judgment, and in 1864 was put in possession, and she and her tenants, the other defendants to this action, have held the possession since that time. The grant was for two leagues Avithin the exterior lines of the tract described in the grant, containing a larger quantity of land. The title of Maria T. P. de Castro was confirmed, and after she was put in possession under her judgment against the present plaintiff and others, the lines of her grant were surveyed and finally established under the authority of the United States, and the grant as surveyed, excluded the lands in controversy in this suit. The plaintiff sues to recover the possession of the lands from which he was ejected under the judgment, and the rents and profits of the lands from the time of the survey of the rancho, and certain damages for alleged injuries groAving out of the action. He seeks this remedy under the provisions of the Act of 1858, entitled “An Act for the better protection of settlers on public lands in this State, and to secure the rights of parties in certain cases.” (Stats. 1858, p. 345.)
The Act provides that a person ousted from the .possession of land in an action at law, by a person claiming title under [108]*108a foreign grant, which shall thereafter he rejected, or so located as not to include the land recovered, may have his action against the plaintiff in the former action, and .the person in possession of the land, to recover hack the possession of the land together with the rents and profits thereof from the time he was so ousted, and the costs and damages sustained by reason of the former action of ejectment. The ruling of the Court in sustaining the demurrer to the complaint, raises the question of the constitutionality of the Act.
The grant in this case, it was admitted, was in the usual form of Mexican grants in California, and was held by the plaintiff in the former action, and she did not claim title through any other source. While she was the holder of that title, and prior to the survey and segregation of the two leagues called for by the grant, she was entitled to the possession of the entire tract within the exterior limits designated in the grant. This was so held in Ferris v. Coover, 10 Cal. 589, and affirmed in many subsequent cases, among which are Cornwall v. Culver, 16 Cal. 423; Riley v. Heisch, 18 Cal. 198; Mahoney v. Van Winkle, 21 Cal. 552; Carpentier v. Thurston, 24 Cal. 268. Grants of this character confer a vested interest in the specific quantity of land designated, and though such title does not become attached to any particular parcel of the larger tract, until a survey of the specific quantity is made by the officers of the General Government, the grantee, his heirs and assigns are entitled to the possession of the whole tract out of which the quantity granted is to be taken, as against those entering without title, until such time as the specific quantity is segregated. This right is not a mere naked barren right of possession; but as a necessary incident to the right of possession, the holder of the grant is entitled to the use and enjoyment, and the rents and profits of the land.
The present plaintiff, anterior to the Government survey, was a mere naked trespasser. He held no right in the land, and was not authorized by any law to make an entry, and consequently his tortious entry did not entitle him to the [109]*109possession or to the rents and profits of the land, or vest in him any right therein.
When the survey is made and the specific quantity is set off to the holder of the grant, the surplus comprised within the exterior boundaries, becomes public land. It is then, for the first time, open for settlement in the same manner as other public lands of the United States. At this point of time the statute of 1858, above mentioned, is invoked by the person who had entered and had afterward been ousted under a judgment in favor of the holder of the grant, from the lands which by the survey are excluded from the grant.
The statute cannot be maintained as conferring the right of possession, for the lands being public lands of the United States the right to the possession comes from the United States alone. The State can give a right of entry only where she claims as owner in her own right, or as the grantee of the General Government. The statute can be upheld only on the ground that it conserves the right of possession already held and affords a remedy for its violation. But no one was entitled to the possession before the survey, except those holding under the grant. The person who entered upon the land, in hostility to • the grant, before the particular quantity-granted was segregated from the larger area, took nothing by his entry, and he had no right therein to be protected by the statute. He can acquire no right therein until he has entered upon or purchased the land according to the laws of the United States. Had he remained in possession until the survey, the grantee could not maintain ejectment against him, for upon the survey being made the grantee’s title to the surplus expired; but the settler’s right commenced when the survey was made, and had its origin in the fact of his possession on and after that time. If it is urged that the grantee remaining in possession of the surplus lands of the survey is a trespasser, the answer is, that is a matter between him and the General Government; and admitting that he is a trespasser, that fact does not make the settler’s entry, which was tortious as to the grantee when it occurred, rightful by rela[110]*110tion, and. convert it into a source of title. "When it is admitted or found, that the settler held no right in the land at the time he was ejected under the judgment, at the suit of the holder of the grant, who was entitled to the possession, and that the settler has not subsequently acquired any right therein, the conclusion is inevitable—and no process of reasoning will lend any strength to it—that the Legislature of the State has no authority to empower him to recover the possession from any one, and that the Act in question, in so far as it purports to enable him to recover the possession, is unconstitutional and void.
The provisions of the Act, authorizing the defendant in the former action to recover the rents and profits of the land from the time he was ousted under the judgment, are also invalid. The plaintiff in that action being entitled to the possession of the land from the time of the recovery of the possession up to the survey of the rancho, was necessarily entitled to the rents and profits of the land during that period; and after that time, she and those claiming under her, while in possession, are entitled to the rents and profits until some one shows a better right to the possession. It "will not be contended that the Legislature has the power to transfer the property of one person, without his consent, to another; and it makes no difference in this respect whether the object is attempted to be accomplished directly or indirectly. The objection is as insuperable, when the object is attempted to be accomplished by indirection, as in this case, by creating a responsibility for the use and enjoyment of the property, to one who has no right therein.
The statute does not seem to contemplate a recovery by the defendant in the former action of the costs of that action or of the damages sustained by reason of the action, except upon a recovery of the possession of the land; nor do we understand the plaintiff to claim that they are independent causes of action. The sfiatute is, that he may" have his action “ to recover back the possession of any such land, with the rents and profits thereof, * * together with all costs and [111]*111damages he may have sustained by reason of said action of ejectment, as provided in section two of this Act.” The language of section two also shows that the “ costs and damages” are accessories to the action to recover possession of the land. "When the principal cause of action fails its accessories share the same fate.
Our conclusion is that the Act is unconstitutional. Mrs. Castro had a vested right to the possession of the land, and to take to her own use the rents and profits thereof, up to the segregation of the two leagues from the larger area; and, being in possession at and after that time, she is presumed to he rightfully in possession, and to he entitled to the rents and profits, until some one shows a right to the possession derived from the United States; and this also is a vested right in her until such better right is shown in the person who seeks to recover the possession. A vested right of property is not necessarily a perfect right, but it is enough that it is valid as against the person who seeks to divest it and acquire it for himself. The statute, if upheld, divests those rights and transfers them to those having no legal claim to them. The object evidently intended to be secured by the Legislature— that of relieving persons of the apparent hardship of being ejected from lands that should not he finally allotted to the grantee, though within the exterior limits of the grant—was incapable of accomplishment without abrogating the rule of law giving the grantee the possession of the whole rancho up to the time when the specific quantity granted is surveyed under the authority of the General Government.
Judgment affirmed.