CROCKETT, J.

, delivered the opinion of the Court:

***
The defendants asked for three instructions, the first of which was given, with a qualification
added by the Court, and the two last were properly refused. They do not correctly define the
presumptions arising from prior possession, as against a mere intruder without title, or color of
title.
At the instance of the plaintiff, the Court gave twelve instructions to the jury, the second of
which is in the following words:
"If the jury are satisfied from the evidence given in this cause, that George Treat entered upon
and inclosed the Potrero in the year 1850, and are further satisfied that he then made a
complete
inclosure of the same, and that such inclosure was sufficient to turn and protect stock, and that
he
actually used such inclosure for that purpose up to the time of the alleged conveyance to Dyson,
and that he deeded the same to Dyson, and that the land was used by Dyson subsequent
thereto,
for the purpose of pasturage, and that the land was suitable for pasturage; and that the
defendants, or either of them who have answered, or those under whom they claim, entered
adversely and subsequent to the completion of said inclosure, and while the said land was
being
so used by said Treat prior, and, by said Dyson, after said conveyance, you will find for the
plaintiff against such defendant, or defendants, provided such defendant, or defendants, was
occupying the premises at the time of the commencement of this suit."
This instruction is objected to by the defendants as wholly unauthorized by the testimony, and
calculated to mislead the jury.
There is no contrariety in the evidence as to the natural features of the Potrero, nor as to the
acts
performed by Treat or Dyson, which, it is claimed, amounted, in law, to an inclosure and to the
actual possession of the land. The testimony shows the Potrero to be a peninsula, containing
about one thousand acres bounded on the north by Mission creek and bay, on the east by the
bay
of San Francisco, on the south by the same bay and Precita creek, and on the west by a stone
wall and ditch, running from Mission creek on the north to Precita creek on the south, across the
neck of the peninsula. It further appears that the wall and ditch were ancient works, probably
built by the priests of the adjoining Mission of Dolores at an early day; and that in 1850, they
had become considerably dilapidated, so as no longer to prevent the ingress and egress of
cattle;
that John Treat, or George Treat, or the two jointly, in the summer or autumn of 1850, repaired
the wall and ditch, so as that, thereafter, it was sufficient to turn cattle; that they erected a gate
in
the wall, through which admission was had to the Potrero, and a small corral, for herding cattle,
inside the wall, together with a shanty, in which the gate-keeper resided; that, immediately after
the wall was repaired and the gate erected, they commenced to receive horses for pasturage
and
used the Potrero for that purpose--having, at times, several hundred head of horses pasturing
there for hire; that, whilst the land was being thus used, John Treat relinquished to George Treat
all his interest in the premises, who thereafter continued to use the land for pasturage, as it had
before been used, until February, 1852, when he conveyed, by deed, to Dyson, all his interest in
the property; and thereafter Dyson used the land for pasturage up to the time when the
defendants entered; that the wall and ditch, together with the creeks and bay, formed an
inclosure
sufficient to protect and turn cattle; that, in 1850, and for several years thereafter, the Potrero
afforded grass suitable for pasturage.
If the fact does not sufficiently appear in proof, the Court will take judicial notice, that the
Potrero, in the year 1850, was separated from the City of San Francisco, as it then was, only by
Mission creek and bay, and that it is now a portion of the city, divided into lots, blocks and
streets. Courts take judicial notice of the geographical divisions of counties and incorporated
cities, and of current events of general notoriety, and of the ports and waters of the State in
which the tide ebbs and flows. (People v. Smith, 1 Cal. 9; United States v. La Vengeance, 3
Dall.
297; Peyroux v. Howard, 7 Pet. 341.)
***
These being the facts of the case, do they establish, or tend to establish, in George Treat or
Dyson such an actual possession of the whole Potrero, as to have justified the Court in giving
the
instruction above quoted?
For the plaintiff, the argument is, that the two creeks, the bay and the wall and ditch formed a
perfect inclosure, capable of turning and protecting cattle, and that it would be an absurdity to
hold that a fence, along the margin of the bay and creek, was necessary, in order to establish
their possession, when those natural barriers formed a more perfect defense than any artificial
structure could have done; that, by repairing the wall and erecting the gate, Treat and Dyson
held
the only means of access to the property, and that it was more suitable for pasturage than for
any
other purpose, in its then condition, and they used it in that way; that, by these means, they
subjected the property to their exclusive dominion and control, and had the actual possession,
the
possessio pedis, until they were intruded upon by the defendants, who were trespassers without
title.
On the other hand, the defendants claim that where so large a body of land is
surrounded--except across a narrow neck of it--by tide waters, having a beach on which the
public has a right to land and to use for any lawful purpose, a fence across the neck does not, of
itself, give possession of or dominion over the whole peninsula; that a beach on tide waters is a
public highway, and is no more effective, as an inclosure, than a public road would be; that,
though a precipitous bluff or cliff may be sufficient to form a part of an inclosure, whether it
front on navigable waters or not, there is no proof in this case of any such bluff or cliff, nor of
any barrier along the beach, except the water; that there having been no sufficient inclosure to
constitute possession of itself, the mere temporary use of the land for pasturage, and
particularly
unaccompanied by a bona fide claim of title, is not, under the former decisions of this Court,
such a possessio pedis as will maintain ejectment; that, devoting to the purpose of pasturing,
merely, so large a body of land, immediately contiguous to a large city, is not such an exercise
of
dominion over it, nor such a subjection of it to the will and control of the party, as to constitute a
possessio pedis; that it appears from the complaint, that the land in contest is bounded partly by
a
marsh, and that a marsh is not, per se, and, in the absence of proof explaining its character,
such
an obstruction as to form a natural barrier against the inroads of cattle.
When the instruction refers to a "complete inclosure" of the Potrero by George Treat, we must
construe this phrase in reference to the proofs. There was not the slightest evidence of any
"inclosure" of the Potrero by Treat, except such as resulted from repairing the wall and ditch.
We
cannot, therefore, infer that this instruction was founded on the hypothesis that there was the
least evidence tending to prove that Treat erected a fence, ditch or wall around the entire
Potrero.
The Court evidently intended to say to the jury, that if Treat repaired the wall and ditch in such a
manner, that, together with the other natural barriers, it formed a complete inclosure, sufficient
to
turn cattle, and if the land was suitable for pasturage, and was used by Treat, and afterwards by
Dyson for that purpose, up to the time of the entry by the defendants, then, that there had been
established in Dyson such possessio pedis as entitled the plaintiff to recover. We think the jury
could not have failed to understand the instruction in this light, and could not, therefore, have
been misled by it in this respect; and particularly when considered in connection with the fourth
instruction, which refers more definitely to the inclosure by means of the wall and ditch, and by
the creeks and waters of the bay.
We have carefully considered the able and ingenious argument of the defendants' counsel, to
the
effect that the tide waters of the bay, with a beach in front of them, on which the public was free
to land, and to use for any legitimate purpose, would not constitute a sufficient barrier on that
side to form a portion of a complete inclosure, in a legal sense. But we think their proposition is
not tenable. If it were, the result would be that a tract of land, completely inclosed with a
substantial fence on three of its sides, and with the fourth side fronting on the ocean, could not
be
held to be inclosed; or that an island in the ocean could not be deemed to be sufficiently
inclosed, unless it had precipitous cliffs, or some sufficient artificial inclosure all around it. A
proposition cannot be sound, which necessarily leads to such absurd results.
***
This brings us to the consideration of what we deem to be the most important and difficult point
in the case. We assume that the Court, in the instruction on which we have been commenting,
clearly intended to say to the jury--and that the jury so understood it--that if Treat repaired the
wall and ditch, and if these, together with the creeks and waters of the bay, formed a sufficient
inclosure to turn cattle, and if the land was suitable for pasturage, and was used by Treat and
afterwards by Dyson for that purpose, up to the time of the entry by the defendants, without title,
that, in that event, it resulted, as a conclusion of law, that there had been established in Dyson
such a possessio pedis as entitled the plaintiff to recover. For the reasons already stated, we
must
assume that the facts referred to in the instruction were satisfactorily proved. But did the Court
draw a correct conclusion of law from these facts? Conceding every fact hypothetically stated in
the instruction to have been proved, did Dyson have such a possessio pedis as entitled him to
recover? . . .
***
It is clearly established, both by reason and authority, that the acts of ownership and dominion
over land, which may be sufficient to constitute an actual possession, vary according to the
condition, size and locality of the tract. If it contains but one acre, and have upon it a valuable
quarry of stone or marble, and be not adapted to any other use than as a quarry, and if it be
openly claimed and actually and notoriously used for that purpose, for a reasonable time, this
might be such an act of dominion over it as to establish an actual possession, even though
there
was no inclosure or residence upon it. So if it be a small parcel, containing a mine, the working
of the mine, in the usual manner, might establish an actual possession at common law, without
the aid of our mining laws and in the absence of any inclosure. But if the tract contain one
thousand acres, with a mine or a quarry on one margin of it, no one would maintain that the
mere
working of the mine or quarry, without other acts of ownership, would establish a possession of
the whole tract. This proposition is well illustrated by the case of Ewing v. Burnet (11 Pet. 41),
in which the contest related to a rugged lot in the City of Cincinnati, only valuable for the sand
and gravel which it afforded for the use of the inhabitants. The lot was not inclosed or inhabited;
but the party who claimed it resided in the vicinity, and for a series of years, sold sand and
gravel
from it, issued licenses to others to dig sand and gravel there and sued trespassers upon it. The
Supreme Court held these acts of dominion to be sufficient to establish an adverse possession.
In
delivering the opinion of the Court, Justice Baldwin says: "Neither actual occupation, cultivation
or residence are necessary to constitute actual possession, when the property is so situated as
not
to admit of any permanent, useful improvement; and the continued claim of the party has been
evidenced by public acts of ownership, such as he would exercise over property which he
claimed in his own right, and would not exercise over property which he did not claim."
***
In this case the Court held, as a conclusion of law, that by repairing the wall and ditch, and
using the land for pasturage, if it was suitable for that purpose, and, if the inclosure was
sufficient to turn cattle, Dyson did all that was necessary to notify the public of his claim, and to
establish an actual possession in law.
If Treat had inclosed the Potrero by a fence or ditch entirely around it, and sufficient to turn
cattle, it would not admit of discussion, that, by the inclosure alone, and without other acts of
dominion, he would have established an actual possession of the land. An inclosure of that
character, is, in itself, sufficient proof of an actual possession. But it is so, only, because of the
erection of the artificial barrier is an open, notorious act of dominion, proclaiming in
unmistakable terms to the public that the land is appropriated and set apart from the adjoining
lands for the exclusive use of the person who erected the barrier. A mere intention to occupy
land, however openly proclaimed, is not possession. The intention must be carried ito actual
execution by such open, unequivocal and notorious acts of dominion, as plainly indicate to the
public that the person who performs them has appropriated the land and claims the exclusive
dominion over it. Anything short of this, is not what the law denominates actual possession. . . .
***
The general principle pervading all this class of cases, where the inclosure consists wholly or
partially of natural barriers, is, that the acts of dominion and ownership which establish a
possessio pedis must correspond, in a reasonable degree, with the size of the tract, its condition
and appropriate use, and must be such as usually accompany the ownership of land similarly
situated. But, in such cases, it is the peculiar province of the jury, under proper instructions from
the Court, to decide whether or not the acts of dominion relied upon, considering the size of the
tract, its peculiar condition and appropriate use, were of such a character as usually accompany
the ownership of lands similarly situated. . . .
***
The vice in the instruction which was given is, that the Court assumed, as a conclusion of law,
from the facts hypothetically stated, that if Treat and Dyson performed these acts, they had
done
all that was necessary to appropriate the land, and to give notice by their acts to the public, that
they claimed the exclusive dominion over it; whereas, as we have seen, it was the peculiar
province of the jury to decide upon the sufficiency of the acts to impart the requisite notice to the
public, and whether or not, under all the circumstances, these acts were such as carried with
them "the marks and evidences of ownership, which apply, in ordinary cases, to the possession
of real property."
For these reasons, the judgment should be reversed and a new trial ordered.
Mr. Justice WALLACE expressed no opinion.