1887.]

Opinion of the Court-Deady, J.

valuation thereof is of more importance than an absolutely "true" one. Therefore, it is no answer to the complaint of a property holder of an unequal assessment or valuation that his property is assessed at its "true cash value." For although that may be true in the abstract, he is entitled to have it valued at its true cash value relatively, or according to the standard of cash value adopted in the valuation of other property, either by lowering the valuation of the one or raising that of the other. The owner of a mortgage on real property given to secure the payment of a debt, which is valued by the assessor at the face of the latter, has cause to complain of an unjust valuation, contrary to the constitution, when an adjoining tract of land, not under mortgage, is valued for taxation at less than the owner would dispose of it at a voluntary sale under ordinary circumstances, and he is "interested" in having the error corrected; and in my judgment he has a right to appear before and be heard by the board of equalization for that purpose.

But the plaintiff having neglected to avail itself of this means of redress cannot maintain a suit for relief in this court. It is no excuse for this neglect, that the board of equalization as well as the assessor were committed to the rule of taxing mortgages, which were generally owned by non-residents, at their face or cash value, and the property in lands, which generally belonged to residents of the county, at much less than such value. Notwithstanding this, it was the duty of the plaintiff, if dissatisfied with the assessment, to pursue the mode prescribed by the statute, relating to assessments, for its correction, when if it failed, it might have taken the matter before the circuit court of the state on a writ of review (Rhea v. Umatilla Co. 2 Or. 298), or brought this suit to restrain the county from collecting the illegal portion of the tax.

There must be a decree dismissing the bill and for the defendants for costs.

Statement of Facts.

[October,

LEROY v. DOE.

CIRCUIT COURT, NORTHERN DISTRICT OF CALIFORNIA.

OCTOBER 17, 1887.

1. LIMITATIONS OF ACTIONS-SAN FRANCISCO LAND TITLES.-The act of Congress of July 1, 1864 (13 Stats. 333, sec. 5), granting lands within the charter limits of 1851 to San Francisco, for certain purposes, vested a perfect title without a patent, and, as to titles derived under the act, the statute of limitations began to run from the time of its passage.

Before SAWYER, Circuit Judge.

Action to recover lands.

The lands are situated within the limits of the pueblo of San Francisco, and within the corporate limits of the city under the charter of April 15, 1851. In August, 1853, E. C. Marshall filed what is called a pre-emption claim, embracing the lands, took possession and fenced it. He afterwards conveyed undivided portions to various parties. The numerous defendants and their grantors claiming under Marshall took possession at an early date, and maintained it, claiming title, adversely to plaintiff, up to the time of the commencement of the suit. There were numerous conveyances, and several partitions made between the defendants. The plaintiff also claims an undivided interest, by conveyances made under Marshall, but neither the plaintiff, nor any of his grantees, appear to have been in actual possession since the conveyances from Marshall in 1854. On June 20, 1855, the common council of the city of San Francisco passed an ordinance, since known as the "Van Ness Ordinance," whereby the city relinquished and granted all its right and title to lands within its corporate limits, "to the parties in actual possession thereof, by themselves or tenants, on or before the first day of January, 1855," with certain specified exceptions, not including the lands in question; "provided such possession has been continued up to the time of the introduction of this ordinance in the common council; or if interrupted by an intruder, or trespasser, has been, or may be, recovered by legal process." Section 3 provided that the patent issued, or any grant made, by the United States to the city, "shall inure to the several use, benefit, and behoof of the said possessors, their heirs and assigns,

mentioned in the preceding section, as fully and effectually, to all intents and purposes, as if it were issued, or made directly to them, individually, and by name." (Stats. 1858, p. 53.) This ordinance was ratified and confirmed by an act of the legislature of the state of California, approved March 11, 1858. (Stats. 1858, p. 52.) On July 1, 1864, Congress passed an act, section 5 of which provides as follows, to wit:—

"That all the right and title of the United States to lands within the corporate limits of the city of San Francisco, as defined in the act incorporating said city, passed by the legislature of the state of California, on the fifteenth day of April, 1851, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city, ratified by an act of the legislature of the said state, approved on the eleventh of March, 1858, entitled 'An act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' etc." (13 Stats. 333, sec. 5.)

The title of the city of San Francisco was confirmed to the pueblo lands, including the lands in controversy, by a decree of the United States circuit court, on May 18, 1865; and by an act of Congress approved March 8, 1866, pending an appeal from the decree of the circuit court (14 Stats. 4), the title of the city was finally granted and confirmed to the city, in trust for those in actual possession, at the time specified, to all the lands embraced in said decree of the circuit court of May 18, 1865; but no patent was issued to the city till after the commencement of this suit, which was on January 28, 1876. The question arising under the statute of limitations was as to when the statute of limitations began to run, as against the parties out of possession, claiming title under the city, through the various proceedings herein stated. The plaintiff insisted that the title from the United States did not become final and perfect until the issue of the patent to the city under the decree of confirmation, and said confirmatory act of 1866; while the defendants maintained that the title became perfect to the lands covered by the act without a patent by the legislative grant in the said act of 1864, and that the statute began to run as to the title derived

Opinion of the Court-Sawyer, C. J.

[October,

from the United States under said act, through the city of San Francisco, from the date of that act.

Mr. Wm. Leviston, for plaintiff.

Messrs. Wilson & Wilson, for defendants.

SAWYER, Circuit Judge. I have gone over this case very carefully. As to all that part of the land described in the complaint lying outside of the line of the Marshall claim, the plaintiff failed to show any title, and that point I decided against him at the trial. As to the other parts, those detached portions lying within the line of the Marshall claim, I am satisfied that the statute of limitations began to run from the date of the act of Congress of July 1, 1864, granting the lands to the city of San Francisco for the purposes stated. (13 Stats. 333, sec. 5.) That was a positive statutory grant. It passed the title as perfectly as a patent would. A patent adds nothing to the title. It only affords a convenient muniment of title. I have ruled before, and so has Justice FIELD, that the statute of limitations begins to run as to the lands embraced in this act from the date of its passage. I am satisfied that there was an adverse possession, from the date of the act, such as would set the statute running even against the party who claims to be a tenant in common. The other parties did not recognize plaintiff as a tenant in comTheir claim was so notorious and manifest against all the world that Leroy must have known it. They paid the taxes and had various dealings with each other in regard to the lands, recognizing each other's interests, but not the claim of Leroy. They fenced it up, and rented it in parts to tenants, and constantly exercised dominion over it. There were several partitions and deeds of partition. Their numerous acts were open and notorious, and wholly in disregard of any claim of Leroy, if he made any pretensions to title. Their acts were of such a character that he could not fail to have been put on notice. I am satisfied that under the later decisions, even against a tenant in common, an adverse possession is shown. There can be no possible question as to all other claimants. The action is barred by the statute of limitations, and there must be a judgment and

mon.

finding for the defendants on that ground. I put the decision on the ground that the plaintiff is barred by the statute of limitations, without considering the other points as to title. The statute began to run in 1864; the suit was commenced in 1876. They were ten years in such adverse possession. The action was barred even under the further act of Congress of March 8, 1866. (14 Stats. 4.)

Let there be findings and judgment for defendants.

MEYERS EL AL. v. BUSBY.

CIRCUIT COURt, Northern DISTRICT OF CALIFORNIA.
OCTOBER 17, 1887.

1. PATENTS FOR INVENTIONS-INFRINGEMENT - DEFENSES. -The fourth and fifth defenses to suits for infringements of patents, authorized to be made by section 4920, Revised Statutes, are separate and independent defenses; and each requires its appropriate notice or answer in order to let in testimony to establish the defense.

Before SAWYER, Circuit Judge.

Action in equity to enjoin the infringement of letters patent No. 141,580, to the complainant Louis Meyers, issued on the fifth day of August, A. D. 1873, for "a glove fastener." The claim is as follows:

"I claim as my invention, and desire to secure by letters patent, the glove fastener, consisting of a cord, B, which is fastened with both ends to one flap of the glove, and drawn through holes in the other flap, to operate in combination with the button or holder, E, as set forth."

The respondent is a glove manufacturer at San Francisco, and practiced the invention under a license from complainant, and paid the royalties therein provided; but at its termination he declined to renew it. He continued, however, to practice the invention against the will of complainants, and thereupon this suit was commenced to enjoin him. A preliminary injunction was granted at the commencement of the suit.

The answer of defendant presents three matters of defense. It alleges:

XIII. SAWY.-8.