Mr. Justice DRIER.
There were two several instructions given by the court below to the jury. If either of them be correct, the verdict rendered for the plaintiff below was correct, and the judgment of the court thereon miffit be affirmed.
The plaintiff in ejectment claimed under a patent.from the United States; the defendants under a claim confirmed by the -District Court, on which an appeal had been entered by the Attorney Deneral. This claim had not. been surveyed; its boundaries were not officially ascertained, nor had any patent been issued for it,
Thb court instructed the jury, "that in the- action, of ejectment the legal title must prevail; that the plaintiff had a legal title by his patent, and the defendant's; if any, was but an inchoate and equitable title,- which might, avail in a court of chancery, but it could' not avail the defendant in action of. ejectment." '
This instruction was in exact accordance with numerous de cisiona of this court, (see Mezes vs. Greer, 24 How., 268,) and justified the verdict, even if there had been error in the other instructions given.
There is another and important question in the case. It relates to the nature of the title of a pueblo to its common or pasture lands, and whether*, under the laws and customs of Spain and Mexico, the. government of the colony could make. valid sales within the boundaries of the common so claimed?
This questiou is now for the first time presented to' this court. .The defendants in error have filed their brief, containing an elaborate argument; but-the plaintiffs in error have not' furnished us any. As it is not necessary, to our judgment of' affirmance of this case, to give any opinion on this point, we decline any examination of the question on an- ex parte argument.
We may give, as an additional reason for this course, that the question depends on the.local law, and. on the history and custom,of the Mexican government and the Governors of California. And since the appeal in this case, it seems to have been adjudged by the local tribunals. (See Hart vs. Burnett, 15 Cal. Rep., 544; and Brown vs. San Francisco, 16 Cal. Rep., 452.)
This decision of a question of local law by these domestic tribunals may well have been considered by the plaintiffs in error as a sufficient reason for abandoning his case without argument .here.
Judgment of the District Court affirmed.