Wagner

This is an action in ejectment to recover possession of about seven feet ten inches of land on Nebraska Street, San Francisco, together with damages for its retention. The judgment was in favor of the defendant, from which the plaintiff appeals.

[1] This is the second trial of the action. Upon the first trial, judgment was in favor of plaintiff, defendant appealed and the judgment was reversed. The opinion of division one of this court upon the former appeal appears in volume 38 Cal. App. 670 , [ 177 Pac. 293 ]. From the statement of facts in the opinion upon the former appeal it would seem that the facts-shown are substantially the same upon both appeals. The additional testimony upon this appeal is stated by appellant to be the testimony of Jacob Corinson, called by plaintiff in rebuttal, but this negative testimony at best raises a conflict in the evidence which was resolved against the plaintiff by the trial court, and cannot be disturbed here.

It would, therefore,, appear that there is no substantial difference .in the record upon the two appeals which would change the rule of law announced by the court upon the former appeal.

[2] Appellant also urges that because the…