We understand the court to have held in Bernal v. Gleim, (33) Cal., 675), that the sheriff's deed in evidence in that case was void on its face. Certainly none of the cases there cited sustain the proposition contended for by appellant in the case at bar. Besides the two New York cases already commented upon, Jackson v. Frost, 5 Cow., 346; La Frombois v. Jackson, 8 Id., 583, and Jackson v. Waters, 12 John., 365, are referred to. In the first of the three cases last named, it was held, under the New York statute, that where one entered upon land, claiming it to be a gore between two patents, there was not such adverse possession against the true owner as would ripen into a right. In La Frombois v. Jackson, 8 Cowen. 589, it was held not to be necessary that an adverse possession, in order to be available within the statute of limitations, should commence under an effectual deed; and that an executory contract, the consideration being paid, is a sufficient basis of claim under color of title. In Jackson v. Waters, (12 John., 365), the court decided that a possession taken under a grant from the FrenchCanadian government, prior to the conquest of Canada by the British, of land now in the state of New York, was not such an adverse possession as would defeat the operation of a subsequent grant of the same land under the provincial government of New York. None of these cases hold that a sheriff's deed, following a sale under an invalid money judgment, cannot be made available as color of title.

In the case at bar the questions of ouster and of adverse holding for five years after the ouster were questions of fact, and there was evidence at the trial in the court below to sustain the finding of the jury upon that issue.

4. We think the admission in evidence of the petition of Melville to set aside the judgment in Cocke v. Melville, and the order of the district court, denying his motion, could not have injured the plaintiff. The court, at the trial of the present case expressly instructed the jury that the judgment was void.

5. The deed from Cocke to Sanor was admissible. From a very early day it has been held here that a quit-claim deed is as effectual to transfer title as a grant or bargain and sale. Such a deed therefore gives color of right.

6. The conveyance of March 19, 1862, from plaintiff to defendant of lands adjoining the demanded premises was at most irrelevant and immaterial. It could not have prejudiced the plaintiff.

7. The evidence of Sanor with respect to his having improved and inclosed the premises after the receipt of his deed from Cocke was admissible under the plea of the statute of limitations.

8. The court properly rejected evidence of declarations of Sanor, with respect to his title, made after he had sold and conveyed to defendant.

9. The court did not err in refusing to instruct the jury, that one cannot hold possession of lands adversely so as to acquire the title, unless he has knowledge of the nature of the title of the real owner.

10. It is contended by appellant that, inasmuch as the title to the onds did not vest in the state until the certification by the land department in December, 1866, and as ten years from that date had not lapsed when this action was brought, the plaintiff was not barred of a recovery. The certificate of purchase under which plaintiff claims was issued on the thirtieth day of August, 1858, under the act of April 21, 1858. By that act no certificate could issue until the whole purchase price of the land was paid, and the certificate in evidence herein recites that Melville had made payment in full. Ho thus acquired (at least from the time the land was listed to the state) a perfect equity as against the state, and the case shows that no patent has been issued to him, or his assignee. More than five years had elapsed after the land was certified to the state. when this action was commenced.

In Manly v. Howlett, 55 Cal., 94, it was said: "It is true that before the patent should issue, the statute of limitations might build up a title in the possessor as between the parties so as to determine their rights upon the then condition of things; but the issuance of the patent gave new rights; the patentee and his grantees then had a right superior to any theretofore owned or held by them, viz, the ownership of the land. They then had something which the state had not theretofore parted with. In a suit for the recovery of the land, commenced after the issuance of the patent, the statute of limitations cannot be held to have commenced running prior to the date of the patent."

Two circumstances existed, or were assumed to exist, in Manly v. Howlett, which do not appear in the case at bar. 1. In that case it appeared that subsequent acts were to be performed by the party claiming under the certificate, before he would be entitled to a patent, viz., payment of the annual interest and of the deferred purchase money. In the case before us full payment of the purchase money had been made to the state before the certificate issued. 2. In that case a patent had been issued to the assignee of the certificate before the action was brought. In the case at bar neither the original holder of the certificate nor any assignee of his had received any further muniment of title when this suit was commenced.

As we have seen, when this action was commenced, more than five years had elapsed after the certification of the land to the state. When the land was certified the holder of the certificate of purchase, who had paid for the land, and fully complied with all the terms of his contract, became entitled absolutely to a patent. He became, as against the state, the owner of the land, at least equitably, and the State could not have recovered its possession. He acquired a perfect equity, and the act of 1858 clearly provides than when the fand shall be certified to the state, the title thus acquired shall inure beneficially to the purchaser who has complied with the conditions imposed upon him; the state retaining, at most, but the naked legal title.

Plaintiff, therefore, if he can be treated as the holder of the certificate, had a title with right of possession from December, 1866, of which his certificate was prima facie evidence, and of which his certificate and the certification to the state were conclusive evidence.

His title, such as it was, gave him the right of possession, and it remained unchanged for more than five years prior to the commencement of the action. Even if it should be conceded that he may commence a new action within five years after he shall receive a patent for the land, he cannot recover, as against an adverse possessor, on a title acquired more than the statutory period before the present action was commenced.

11. It is said that the state is charged with a trust in respect to land of the swamp land donation, and that if the state may be disseized at any time before reclamation, the power to execute the trust is gone, for the subject of the trust is then under the absolute and exclusive dominion of the disseizor.

It is not necessary to decide whether, if the state had not parted with its title, it could have been disseized of a portion of the swamp lands. Here, as we have seen, the right of possession had passed to the holder of the certificate of purchase, in whom had vested a perfect equity with an absolute right to demand a patent. Appellant cites in suppport of his position with respect to the trust certain adjudications which, as we think, do not support it. Emigrant Co. v. County of Adams, 100 U. S. Rep., 61, rather upholds the view that the power of reclaiming swamp and overflowed lands is in the state, without any other security, that such lands will be reclaimed or that the proceeds of their sales will be applied to reclamation purposes, than such as rests upon the good faith of the state; that the state may employ its discretion in the disposition of the proceeds, and providing means for reclamation, without being called on to account, and without the title to the lands being affected, at least at the option of any party other than the United States. It would follow from this, and from the wording of the act of congress of September 28, 1850 (9 Stat., 519), that the state may dispose of the lands prior to their reclamation. There is no provision in the act of the legislature of April 21, 1858, to the effect that such lands shall not be sold, or that no certificate of purchase or patent shall issue, until after the lands are reclaimed. The state of California has provided, by appropriate legislation, for the reclamation of swamp an I overflowed lands after the title of the state thereto had passed to private persons.

Kimball v. Reclamation, 45 Cal., 344, is authority to the point that one who accepts a grant from the state for swamp lands is presumed to accept with a consent that he and his land shall be subject to subsequent legislation imposing a burden on the lands to secure their reclamation. The case assumes that such lands may be conveyed prior to their reclamation, and that the state may discharge its duty, and comply with the condition subsequently imposed by the grant from the United States, by appropriate legislation, pro

viding for reclaiming the lands after they have passed to private proprietorship.

Appellant also cites Hoadley v. San Francisco, 50 Cal., 265. But in that case it was held that one cannot acquire a title by adverse possession to a public square or a public street-laid out and dedicated as such on pueblo lands within the limits of San Franciscobecause the city had no power to alienate or in any manner dispose of such public squares or streets. With reference to the swamp and overflowed lands the legislature of the state has power to grant them to private persons. As we have seen, the state had transferred the right of possession to the particular land herein sued for. Judgment and order affirmed.

No. 8,551.

PACKARD ET AL. v. MOSS ET AL.

Department One. Filed September 11, 1884.

Judgment affirmed on the authority of Packard v. Johnson, ante.

APPEAL from a judgment of the superior court for San Joaquin county, entered in favor of the defendants. The facts are similar to those in Packard v. Johnson, ante.

J. B. Hall, for the appellants.

J. H. Budd and F. F. Baldwin, for the respondents.

THE COURT. On the authority of Packard v. Johnson, No. 8,550, ante, opinion this day filed.

Judgment and order affirmed.

No. 9,605.

SILVA ET AL. v. GARCIA.

In Bank. Filed September 12, 1884.

WASTE-DESTRUCTION OF FRUIT TREES INJUNCTION. The entry upon land, and digging up and removing fruit trees growing thereon, is an injury to the inheritance, in the nature of waste, which a court of equity will enjoin.

SUPERVISORS OPENING ROAD-NOTICE OF PROCEEDINGS. The board of supervisors of a county have no power to cause the construction of a road through the lands of a private individual, without giving such person notice of the proceeding to open the road.

APPEAL from an order of the superior court for Contra Costa county, refusing to dissolve an injunction. The opinion states the facts.

A. H. Griffith, for the appellant.

Sheffield & Wallace and E. J. Emmons, for the respondents.

MORRISON, C. J. The complaint in this case contains three causeg of action, each of which is separately stated. The first charges an entry upon plaintiff's land and the destruction of a fence thereon; the second charges a like entry and the destruction of valuable fruit trees growing on the land by digging the same, and also a threatened entry for a similar purpose; and the third charges that the board of supervisors of Contra Costa county did, on the seventh day of August, 1883, made an order establishing a private road over and across the same land and premises of plaintiffs, and defendant threatens to go upon said land and open said road, and further, that he will do so, unless restrained by an order of the court.

There was a demurrer to the complaint substantially on the grounds that plaintiff had a full and adequate remedy at law, and secondly, that the complaint did not state sufficient facts to entitle plaintiffs to the extraordinary remedy of injunction.

The demurrer was overruled, and an injunction was granted on the thirteenth day of March, 1884. Defendant moved to dissolve the injunction. Motion was denied April 30, 1884, and from the order denying the motion to dissolve this appeal is prosecuted.

The principal point made and relied upon on appeal, is that plaintiff's had a full and ample remedy in a court of law, and that the acts complained of were simple trespasses for which an action sounding in damages was the prayer and only remedy.

It was something more than a mere trespass of which the plaintiffs complained. The entry upon the land, and digging up and removing the fruit trees growing thereon constituted waste in the eye of the law, as it was an injury to the inheritance: Hicks v. Michael, 15 Cal., 115: Merced Mining Company v. Fremont, 7 Id., 319; More v. Massini, 32 Cal., 590. It was clearly matter for equitable interference by the court.

The third cause of action stated that the board of supervisors had made an order that the road should be opened, which order the defendant was about to execute. It is further charged that the order was made by the board of supervisors without giving the plaintiffs any notice of the proceeding to open the road. For this reason it is claimed that the order of the board was void for want of jurisdiction. "In such a proceeding the person whose rights are to be affected against his will must have notice:" Cruger v. Hudson River Railroad Company, 12 N. Y., 190; Curran v. Shattuck, 24 Cal., 433.

We are of opinion that the facts set forth in the complaint were sufficient to entitle plaintiff to an injunction and therefore the court did not err in denying defendant's motion to dissolve the same. Order appealed from affirmed.

Ross, J., MYRICK, J., MCKEE, J., MCKINSTRY, J., and THORNTON, J., concurred.