By the Court, Crockett, J.:
It is clearly established by the evidence that the defendants, when they entered upon the demanded premises, intruded upon the actual possession of the plaintiff, which he held as a tenant under Hough & Harlan. The defendants seek to justify their entry on the ground that the land was a part of the public domain of the United States, which was then subject to pre-emption; and that, being qualified pre-emptioners, they entered in good faith for the purpose of taking up and perfecting pre-emption claims. If the land was not subject to pre-emption, this defense must fail, and the defendants were mere naked intruders upon the actual possession of the plaintiff.
It appears from the findings that, in the year 1864, and before the land had been surveyed by the authority of the United States, the proper authorities of this State had issued to the assignors of the plaintiff’s lessors, certificates of • purchase for the land in controversy, under the statutes of California, in respect to the location and sale of lands dona*440ted by the United States to this State, for internal improvements and other purposes; that prior to the years 1868 and 1869, respectively, the lessors of the plaintiff had partially inclosed the premises in controversy, and had planted'and cultivated the same in grain; that in the years 1868 and 1869, respectively, they rented said lands to the plaintiff, who cultivated the same in grain; and whilst he was so in the actual possession, the defendants, in October and November, 1870, entered and ousted the plaintiff, and have ever since been in possession; that in or about the month of March, 1869, the township including this land was first surveyed and sectionized under the authority of the United States, and in June, 1871, the approved plat of the survey was returned to the Land Office of the proper district; that in the following month the lessors of the plaintiff made application to the Register and Receiver to be allowed to present and prove up their purchases and claims, and to have the land certified over to this State by the Commissioner of the General Land Office. So far as appears, these applications were still pending at the time of the trial. Upon these facts, the plaintiff contends that the land was not subject to pre-emption, and that the case comes fully within the principles decided in Toland v. Mandell, 38 Cal. 30; Hodapp v. Sharp, 40 Cal. 69; and Flint v. Bell, decided at the October term, 1870, but not reported. "We agree with the plaintiff that the propositions settled in those cases are decisive of the present actions, and establish that the land in controversy was not subject to pre-emption when the defendants entered, or at any time since.
In Toland v. Mandell, supra, the Act of Congress of July 23d, 1866, entitled “An Act to quiet land titles in California,” (14 Statutes at Large, 215), was fully discussed, and the reasoning need not be repeated here. The conclusions reached were: First—That under said Act the holders of State selections of unsurveyed public lands, acquired the rights of pre-emptioners on unsurveyed lands, provided their purchases were made in good faith under the laws of the State, and their selections had been surveyed, marked off, and designated in the field, unless, at- the time of the pas*441sage of said Act, some pre-emption, homestead, or other right, under the laws of the "United States, had attached to the land, or unless it was within some of the reservations specified in the Act. • Second—That the Act of Congress had the effect to legalize the possession of locators upon unsurveyed public lands, and to enable them to maintain ejectment and other actions, in respect to the possession, during the interval which elapsed prior to the time when they were afforded an opportunity under the Act to present their claims for adjudication by the proper officers of the United States. Third—That the certificate of purchase was prima facie evidence that the land was sold by the State in good faith, and if the land be within any of the exceptions stated in the Act, the burden of proof to show that fact is on the adverse party. In the present case, the plaintiff was in the actual possession, as the tenant of the locators, and the land had been surveyed in the field. The certificate of purchase was prima facie evidence that the land had been purchased from the State in good faith; and, within the proper time, the locators had made their applications to the proper officers of the United States to be allowed to prove up their claims and have them adjudicated. The defendants had made no attempt to pre-empt the land until long after the passage of the Act of Congress; and when they entered, the plaintiff, holding under the locators, was in the actual possession. This possession was, therefore, lawful, and was protected by the Act; and the. land not being subject to pre-emption, the defendants were trespassers. Being mere intruders, without title or color of right, the plaintiff was entitled, in virtue of his prior possession, to a judgment of restitution. Moreover, if the defendants intended to rely upon the fact that the plaintiff’s right to the possession had expired during the pendency of the action, the fact should have been pleaded in a supplemental answer.
But the defendants contend that, at the date of the State locations, the land was within the exterior limits of a Mexican grant, not then finally confirmed and segregated, and that for that reason it was expressly reserved from location *442by the first section of the Act of Congress. It is claimed, therefore, thát these locations were absolutely void. But these actions were tried before the present codes took effect, and the findings are silent on the point now suggested, nor was there any exception on that ground. In such cases it is well settled that we must presume the implied findings on this point to have been in accordance with the judgment. The defendants, however, in their statement on motion for new trial, specified this as one of the particulars wherein the evidence was insufficient to justify the finding and judgment, and claim that a new trial ought to have been granted on this ground. But the evidence on this point was so extremely meagre and unsatisfactory that we are not inclined to disturb the judgments on this ground.
Judgments affirmed.
Neither Mr. Justice Niles, nor Mr. Justice McKinstey, expressed an opinion.