Baldwin, J. and Cope, J. concurring.

This is an action of ejectment to recover a tract of land situated within the county of San Francisco. The complaint is of a character which has frequently elicited observations of disapprobation from this Court. It is filled with matters relating to the title of the plaintiffs, which have no place in pleadings, and should only be presented as evidence in the case. Had the defendant made the application, these matters would, undoubtedly, have been stricken out, as redundant, at the cost of the plaintiffs. It is not within the wit of man to devise more simple rules of pleading than those prescribed by the Practice Act of this State, and there is no excuse for any departure from them. That facts, and not the evidence of facts, should be alleged, is not less a rule of pleading in our system than it was under the former system, which has been superseded. Thus, in the present case, the complaint should only have alleged, that on some day designated the plaintiffs were possessed of the land, describing it; that whilst thus possessed, the defendant entered upon the same, and ousted them, and has ever since withheld the possession from them, to their damage ; specifying such sum as might cover the value of the use and occupation from the date of the ouster.

*572It is upon matters unnecessarily incorporated into the complaint that the objections of the appellant principally rest, and for which he seeks a reversal of the judgment. The objections raised by the demurrer we do not notice, as the demurrer was overruled by consent of parties. A ruling made by consent cannot be the subject of consideration in this Court.

The complaint refers, in 'its statement of the various transfers of the property before it reached the plaintiffs, to the several mesne conveyances of the intermediate parties from one Morris, copies of which are annexed, and made part of the pleading. These conveyances, in addition to giving a description of the premises by metes and bounds, designate them as one-half of a certain preemption claim taken up by Morris in 1850, and surveyed by the County Surveyor, and recorded in conformity with the statute. This designation constitutes the basis of the main objection urged to the complaint. The general position of counsel, as we understand it, is this : that the designation of the property, as constituting a part of a preemption claim, shows that it belongs either to the United States or to the State of California, and that in consequence, it is essential, to entitle the plaintiffs to a recovery as against the defendant in possession, that they should allege in their complaint and establish on the tz-ial such facts as would bring them within the provisions of the preemption laws of the United States, or the Possessory Act of this State. The proposition, as thus stated, cannot be maintained.

The designation of the property as a part of a preemption claim does not preclude the claimants from relying upon any other source of title than the United States or the State. But if we admit, for the purposes of this case, the rule to be otherwise, and that the plaintiffs are estopped from denying the superior title of the General .or State Government, the inference which the learned counsel would deduce from the admission does not follow. It is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and that it is a sufficient answer to his action to show title out of him, and in a third party. But this general rule has in this State, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been to a certain extent qualified and limited. The larger portion of the mining lands within the State belong to the United States, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery *573of portions of such lands. Actions for the possession of mining claims, water privileges and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the Government would operate to defeat them, confusion and ruin would be the result. In determining controversies between parties thus situated, this Court proceeds upon the presumption of a grant from the Government to the first appropriator of mines, water privileges and the like. This presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. And with the public lands which are not mineral lands, the title, as between citizens of the State, where neither connects himself with the Government, is considered as vested in the first possessor, and to proceed from him. This possession must be actual and not constructive, and the right it confers must be distinguished from the right given by the Possessory Act of the State. That act, which applies only to lands occupied for cultivation or grazing, authorizes actions for interference with, or injuries to the possession of a claim not exceeding one hundred and sixty acres in extent, where certain steps are taken for the assertion of the claim, and to indicate its boundaries. Parties relying upon the rights conferred by this act must show a compliance with its provisions. They can thus maintain their action without showing an actual enclosure or actual possession of the whole claim. (See Wright v. Whitesides, 15 Cal. 46, and Garrison v. Sampson, Id. 93.) But where reliance is placed, not upon the act, but upon the prior possession of the plaintiff or of parties through whom he claims, such possession must be shown to have been actual in him or them. By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation—by a substantial enclosure—by cultivation, or by appropriate use, according to the particular locality and quality of the property.

The Court instructed the jury that the plaintiffs, in order to recover, must show, after taking a Iona fide possession, that they continued in actual possession until ousted by the defendant. This instruction was given at the request of the defendant, and was more favorable to him than the law warranted; yet upon it the jury found for the plaintiffs. The evidence as to the possession was conflicting, and it is our invariable rule not to interfere with the verdict in such cases. Had the verdict been for the defendant, we should not disturb it, for the same reason.

*574The date of the ouster—which is alleged to have taken place in June, 1856, whilst the title of the plaintiffs is alleged to have accrued only in May, 1859—is, probably, a clerical error. If not so, it is a defect which cannot be taken advantage of after verdict.

Judgment affirmed.