The opinion
Rhodes, J.,
concurring:
Ejectment to recover the possession of a lot in the City of Los Angeles. The plaintiff claims title under a grant made by the proper municipal authorities of the city, and such title, it is assumed by both parties, was sufficient to enable the person holding it to maintain ejectment. The title of the city was finally confirmed in 1858. So patent has issued to the city, but the survey was approved by the Surveyor General, July 2d, 1859, and since that time has remained in his office and has not been returned into the District Court, nor have proceedings been initiated to contest it. The defendants and their grantors have been in the adverse possession since 1856. The action was commenced April 13th, 1868. The Court below held that the action was barred by the Statute of Limitations as amended April 18th, 1863.
The statute had not commenced to run in this case when the Act of 1863 took effect. It was held in Johnson v. Vandyke, 20 Cal. 225 ; Davis v. Davis, 26 Cal. 46 ; and Beach v. Gabriel, 29 Cal. 580 , that “final confirmation,” within the meaning of the Act of 1855 amendatory of the Statute of Limitations, was the issuing of the patent. As no patent had issued to the city, the time had not commenced to run under the Act of 1855 against the plaintiff’s grantor when the Act of 1863 took effect.
The seventh section of the statute of 1863 defined “final confirmation” for the purposes of that Act alone, and was not intended to have a retroactive effect, so as to set the
*295 statute running by construction. And it may be added that an approval of a survey which became final in any other mode than under the provisions of the Act of Congress of June 14th, 1860, will not come within the provisions of section seven of the Act of 1863.
This action having been commenced less than five years after the Act of 1863 took effect, and no portion of the time provided by the statute of 1855 for the commencement of actions having run when the Act of 1863 took effect, the action was not barred by the Statute of Limitations.
The appeal is taken from the judgment. The findings show that the plaintiff is entitled to recover the possession of the premises in suit.
I am of the opinion that the judgment should be reversed, and cause remanded, with directions to enter judgment, on the findings of fact, for the plaintiff.
Mr. Justice Crockett concurred in the opinion of Mr. Justice Wallace.
Mr. Justice Riles concurred in the opinion of Mr. Justice Rhodes.
Mr. Chief Justice Sprague did not participate in the decision of the case.