¶1Cope, J. concurring.
¶2A voluminous argument on behalf of the appellant is on file. No brief is filed by the respondents. The case is ejectment to recover possession of a certain island called Yerba Buena.
¶3*621The main question tried seems to have been the actual possession of one Spear, and of one King, his grantee of this island. This possession was attempted to be proved by various witnesses, some of whom testify to Spear having goats (either in conjunction with one Fuller, as Leavenworth seems to intimate, or alone) on the island as early as 1837, and as late as 1849, when Spear died; and a good deal of other testimony of like character. A deed was also given in proof from Spear to King, dated in 1849, and from King to plaintiff, dated in 1856. The defendants set up possession and actual occupancy as early as 1849; and offer proof by several witnesses to that effect. A tax deed was also offered on behalf of plaintiff. The instructions of the Court are omitted from the transcript.
¶4We are unable, therefore, to see in what light the Court put the case to the jury in view of the proofs; but it is presumed that it instructed them correctly in the law of the case. Upon such instruction the jury found the issues for the defendants, and the learned Judge below, on motion for new trial, refused to disturb it. We cannot, under these circumstances, give conclusive effect to this not very satisfactory testimony of the former possession of Spear or King furnished by these witnesses, as against the proof of an actual occupancy in 1849 by defendants. We cannot say that the proof was not ample to. show an abandonment of the possession, if it ever were held, or what weight the jury attached to the testimony of these witnesses. We cannot see that the plaintiff makes out title through the tax deed; for this seems to have been public land of the United States, and therefore could not be sold for taxes. If the taxing of the improvements were proper, then the deed, etc., should show this, and not a sale of the fee or a taxing of the land itself.
¶5If prescription run against the Government of Mexico, we cannot give effect to the doctrine here in favor of the plaintiffs, for the loose and equivocal proof of this partial possession from 1837, even if there was nothing in the proofs showing a holding in subordination to the Government, would not warrant us in deciding, against the finding of the jury and the ruling of the Judge who heard the testimony, that the plaintiff so held and claimed as to give him title by prescription.
¶6Judgment affirmed.