Appeal from the Sixth District.

Trespass for damages caused by defendants driving their cattle upon land claimed by plaintiffs. The complaint avers that plaintiffs as joint tenants were, on a day named, “ in the peaceable and quiet possession of” a certain tract of land, described as bounded on the south by the Cosumnes river, east by a grain field of plaintiffs, which lies between said tract and a ranch known as “ McConnell’s ranch,” on the north by uninclosed lands, and on the west by lands occupied by defendants, in all about one hundred and sixty acres, more or less, “ holding and claiming the same as in fee simple ;” that while plaintiffs so possessed and held the tract, defendants drove one thousand of their cattle, horses, etc., upon it, and by means thereof the grass and herbage were trampled down, consumed and destroyed, and the soil torn up, subverted and spoiled. Prayer for $1,000 damages.

The answer contained a general denial, and averments that before the alleged trespass plaintiffs had abandoned and quit the possession of the premises; that before and at the time of the alleged trespass defendants were owners in fee simple of the undivided half of the land, and in quiet and peaceable possession thereof; and that they committed the alleged trespass by leave and license from plaintiffs.

The facts are, that plaintiffs were for several years in the possession of a large tract of land on the Cosumnes river, in Sacramento county, part of which is known as the “ Murphy grant,” called in the Mexican grant rancho “ Caradores.” When they first entered, and'for some time after, they held by possession only, without title under the grant; but subsequently they purchased an interest in a portion of the grant, including the premises in controversy ; and defendants also purchased an undivided half of said I portion, as will appear when the deeds are referred to. -The parties were neighbors, and agreed to divide the land held and claimed by them respectively, and employed a ^surveyor to run a division line. The surveyor run the line and marked it out, and it was agreed between the parties that plaintiffs should have their share of the land by taking the tract lying east of this division line, and the de-, fendants their share in that portion lying west of it; and plaintiffs went on and built a fence near and parallel to this division line, leaving room for a road between the fence and the line. Soon after, defendants turned their cattle into the field west of the division line, though when plaintiffs learned that defendants were turning their cattle in, they attempted to drive them back and keep them out.

On the trial, plaintiffs proved their actual possession and the alleged trespass by defendants, with the amount of damage, and that they had their horses and calves running in the field in question until April 12th, when defendants entered; and then rested. Defendants then first proved the agreement as to the division line and the survey thereof, and also that after this survey one of the plaintiffs stated that he had made a division of the land, and that the west side of the line belonged to defendants, and that the plaintiffs had the Murphy title; and then offered in evidence a deed from Martin Murphy and wife to James Murphy, dated September 4th, 1850, of the undivided half of the “ rancho de las Carzadores,” and a deed from Martin Murphy to Ingoldsbe and others, dated May 28th, 1850, of an undivided half of said rancho. This second deed was objected to by plaintiffs on technical grounds, as to proof of execution, etc., and ruled out. Defendants then offered a deed, dated August 7th, 1851, from Ingoldsbe and others—the grantees in the second deed above—to plaintiffs, of a tract of land containing about two thousand acres, the deed particularly describing the tract, and stating it to be a part of Murphy’s old rancho on the Cosumnes river. Plaintiffs took the same objections to this deed as to the preceding one, and it was ruled out, defendants excepting. Defendants then put in evidence a deed,.dated June 25th, 1857, from James Murphy and wife to one of the defendants, of an undivided half of the rancho Carzadores.

When plaintiffs were proving their damage, they asked a witness: “ What would have been the injury to the land by turning in two hundred head, of cattle on the twelfth, thirteenth and fourteenth of April, and letting them remain six or seven days ?” Objected to by defendants on the ground that this was a question for the jury. Overruled, and exceptions. Answer: “ I think there are about two hundred and twenty-five acres in the field, and about one-fifth or sixth part is wet and the remainder dry land. I think it would injure the wet land to turn cattle on it to the amount of one hundred dollars.” Question: “ What would it be worth to turn into the field spoken of two hundred or three hundred head of cattle and pasture them six or seven days ?” Objected to by defendants on the ground that the witness is not shown to have sufficient knowledge of the facts to testify as to this point, and also that it is a question for the jury and is irrelevant. Overruled, and exceptions. Answer: “ I should think that the field for a season would be worth three hundred dollars, and that two hundred or three hundred head of cattle would get it off in ten days.”

The Court charged the jury in effect that plaintiffs and defendants were not tenants in common of the land in controversy, but held adversely to each other, and hence that the possession of the one was not the possession of the other; that the real question was, whether defendants had a right to enter upon and turn their cattle into the premises by virtue of. the agreement relative to a division line; that the joint proprietors of land may meet together and set•tle a common boundary, and when the boundary is so settled, and possession taken of his portion by each party, neither can after-wards rescind, and that such settlement or agreement need not be in writing; but that if neither party takes possession, and the agreement is not carried into effect at the time, then either party can rescind it; that, in this case, if, before defendants entered into possession under the agreement fixing the division line, plaintiffs notified them that they would -not carry it out, and that they (plaintiffs) continued in possession up to the time defendants turned their cattle in, then defendants are trespassers, the plaintiffs having the legal right to change their mind and repudiate their verbal agreement unless defendants, at the time it was made and the line fixed, took possession of the part assigned- to them, in which case defendants are not trespassers.

To this charge defendants excepted, and asked the Court to instruct the jury, that if they believed from the evidence the parties were joint owners of the premises, whether as tenants in common or otherwise, then plaintiffs cannot maintain this action, as both parties have an equal right to the possession. Refused.

Verdict for plaintiffs, two hundred and fifty dollars; defendants appeal.