[No. 19291.

Department Two.

February 24, 1894.]

#### CATALINA S. AMES et al., Respondents, *v.*THE CITY OF SAN DIEGO, Appellant.

Pueblo Lands—Public Trust—Adverse Possession.—Land acquired from the United States by a city as successor to a former pueblo, held in trust for the general public for a specific public use, as a park, or for a street, or for public buildings, cannot be alienated, and the title of the public thereto cannot be lost by a possession adverse to the city.

Id.—House Lots—Power of Alienation—Prescription.—In the case of pueblo lands, such as house lots, the legal title of which is vested in the city, and which may be alienated by it, the title of the city thereto may be lost by adverse possession for the period of time required to acquire a prescriptive title under the statute of limitations.

*391Id.—Findings—Presumption—Support of Judgment.—Where the findings in an action to determine an adverse claim to land state facts showing a prescriptive title in the plaintiffs, and also that the land in controversy was patented by the United States to the city defendant as the pueblo lands of the defendant, “in trust for municipal purposes,” without stating that the land in controversy was held by the defendant in trust for a specified public use, it must be presumed in favor of the judgment that the land was a house lot which the pueblo was authorized to convey, and the findings are sufficient to support a judgment for the plaintiffs.

Id.—Conflict in Findings—Liberal Construction.—Findings are to be liberally construed in support of judgment, and, if possible, are to be reconciled so as to prevent a conflict upon material points, and, unless the conflict is clear, and the findings are incapable of being harmoniously construed, a judgment will not be reversed upon the ground of the conflict in the findings.

Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

*William H.*Fuller, and *Clarence L. Barber,*for Appellant.

*William Darby,*for Despondent.

De Haven, J.

The plaintiffs are husband and wife, and this action was brought for the purpose of determining an adverse claim made by the defendant to certain land which, the complaint alleges, is owned by the plaintiff, Catalina S. Ames. The answer alleges that the defendant is the owner of the land in controversy, and this was the only issue made by the pleadings. The action was tried by the court without a jury, and judgment was rendered in favor of plaintiffs. The defendant appeals from the judgment, and from an order denying its motion for a new trial. It is claimed by the defendant that the findings do not support the judgment, and also that the finding in respect to the plaintiffs’ adverse possession is not justified by the evidence.

The court did not find, in direct terms, that the plaintiff, Catalina A. Ames, is the owner of the land in dispute, but it found the following among other facts:

> *392“ 2. That ever since the year 1846 the said plaintiffs and their grantors have been continuously in possession of the lands and premises hereinafter described, claiming the same adversely to defendant, and that the-same have been during the whole of said time inclosed with a substantial fence; and that there has been erected, and is now standing, on said lands a two-story adobe dwelling-house, and a frame dwelling-house, and that said adobe dwelling-house has been occupied by said plaintiffs and their grantors as a dwelling continuously from the said year 1846.”

> “ 4. That on the tenth day of April, 1874, the title of said defendant as successor to the Mexican pueblo-of San Diego was confirmed, and that on said day a patent was -issued to defendant by the United States-of America for the land and premises hereinafter described, with other lands, as the pueblo lands of said defendant, and in trust for municipal purposes.”

The foregoing finding numbered two, although somewhat informal, was evidently intended as a finding to the effect that the plaintiffs had, before the commencement of this action, acquired title to the premises in controversy by adverse possession, and that such is its proper construction is not denied by counsel for defendant; but it is urged that the latter finding, numbered four, is in conflict with the former, and shows that plaintiffs ¿[id not and could not have acquired such a title as against defendant.

The finding last above quoted shows clearly that the-defendant city obtained from the United States title to the land in controversy as the successor of the former-pueblo of San Diego, and it is well settled in this state that land thus acquired cannot be sold under an execution issued upon a money judgment against the city succeeding to the rights of the pueblo. *(Hart*v. *Burnett,*15 Cal. 530; *San Francisco*v. *Ganavan,*42 Cal. 541; *Townsend*v. *Greely,*5 Wall. 326.) The reason for this rule is that such lands are not held as the absolute property of the city, but in trust for its inhabitants. The *393nature of the title of a pueblo to the lands within its limits, and the trust upon which it held the same, is very clearly stated by Baldwin, J., in delivering the opinion of the court in *Hart*v. *Burnett,*15 Cal. 568. He said: “We have carefully examined their references to laws and textbooks, and it seems to us that taken together they show that under the old Spanish system the lands assigned to towns, whether by general law or special act, were in the sense of endowments to be held in trust for the purposes and objects specified in the laws or in the particular grant; or, as expressed by Perez, *en dase en de dote o privilegio de población*(in class of endowment or town privilege), but not in absolute ownership with full right of disposition. The lands so assigned -were for the general object of building up and sustaining the town and its population, and were to be applied to that object in the manner which might be directed by the laws or by royal orders. The government, or its authorized agents, were therefore to designate the portions of such lands which w'ere to be used for particular purposes, as those which were to be given to individuals in *solares*and *suertes,*those which were to remain common for the use of all alike, as the pastures, woods, public squares, watering-places, etc., and those from which' the municipal officers were to derive revenues for their support and the expenses of the municipal government. The lands so assigned to these special objects could not all be used or disposed of in the same manner. Thus, the building lots were to be given to the settlers for their individual and exclusive benefits, but the *commons*were for the common use of all, and could not, in general, be reduced to individual ownership except by common consent or the exercise of the right of eminent domain.”

The defendant city, as successor of the former pueblo, took its lands upon the same trust upon which they were held by the pueblo, and succeeded to the same right of alienation, and while the land held upon such a trust is not subject to sale upon an execution issued upon a judgment against the trustee, it does not by any

*394means follow that title to such portion of the pueblo lands as has not been dedicated to some specific public use cannot be acquired by adverse possession. Of course, it is well settled that land held by a city in trust for the general public upon a dedication to the public for use as a street, park, or for a public building, cannot be alienated by the city, and the title of the public thereto cannot be lost by a possession adverse to the city. *(Hoadley*v. *San Francisco,*50 Cal. 265; *People*v. *Pope,*53 Cal. 437; *County of Yolo*v. *Barney,*79 Cal. 375; *Board of Education*v. *Martin,*92 Cal. 209.)

But in case of lands, the legal title to which is vested in the city, and which may be alienated by it, the rule just stated in relation to land dedicated to the public use does not apply.

As to land which is the subject of alienation, we are clearly of the opinion that the title of the city thereto may be lost by the adverse possession of another for the requisite period of time; and in regard to pueblo lands of this latter character, such as house lots, we see no reason why the statute of limitations should not apply in favor of an adverse possessor precisely the same as if such land had been acquired by the city by purchase and for purposes of sale, or for any other use not strictly municipal.

The remaining question upon this point is whether finding number four shows that the land in controversy is held by the city for some specific public use as a park, street, common, or as a site for public buildings. The language of the finding is that the land was conveyed to the defendant as successor of the pueblo “ in trust for municipal purposes.” We do not think, in view of the specific finding to the effect that the plaintiffs have been in adverse possession of the land since 1846, occupying the same as a place of residence during all that period, that the court intended by the language above quoted to say that this land was ever dedicated to public use as a street, park, or for a public building, or that the same was conveyed to the defendant in trust for either of such *395purposes. Findings are to be liberally construed in support of a judgment and, if possible, are to be reconciled so as to prevent any conflict upon material points, and unless the conflict is clear, and the findings are incapable of being harmoniously construed, a judgment will not be reversed upon the ground of a conflict in the findings. We think the court below only meant to say in the finding now under consideration that the defendant acquired the title of the former pueblo of San Diego to the land in controversy and other pueblo lands, impressed with the same general trust upon which they were held by its predecessor, but did not mean that such land was held by the defendant in trust for a specific public use.

What we have said in regard to the construction of the findings disposes of the further contention of defendant that the finding in relation to the adverse possession of plaintiff is not sustained by the evidence. The stipulation relied upon by defendant to overthrow this finding of the court is as general as the finding we have just considered, and in view of the other evidence in the transcript in which we find no intimation that the lot in controversy was ever dedicated to a public use or that any claim of such dedication was ever made upon the part of the defendant, we would not be justified in holding it to be a stipulation by the plaintiffs that such land was so dedicated to public use and is not a house lot such as the former pueblo might have alienated, and which the defendant, as the successor to the pueblo title, was authorized to convey in private ownership.

Judgment and order affirmed.

McFarland, J., and Fitzgerald, J., concurred.