Page v. O'Brien

SAWYER, J. This action was instituted against several defendants to recover portions of the Suscol Rancho. The plaintiff obtained a verdict, and the court subsequently granted a new trial as to 0 ’Brien, one of the defendants. The appeal is from this order. The ground upon, which the new trial was granted does not distinctly appear, but it would seem that the plaintiff recovered the entire tract claimed, whereas the evidence appears to show that there was a small portion outside of plaintiff’s fence of which he had not been in possession, but which had been continuously in the possession of O ’Brien. The record does not contain the plats which were used, and to which some of the evidence refers in such terms that we cannot tell what precise bearing it had upon the possession of this portion of the land recovered. The district judge had the entire evidence before him, and could better judge of the effect of the evidence, and in the 'absence of an affirmative showing of error his ruling must be presumed to be correct. We cannot perceive- from the record that he erred in granting a new trial.

The order is therefore affirmed.

We concur: Shafter, J.; Rhodes, J.; Sanderson, J.