McIntyre

This was an action to determine a contest over the right to purchase from the state certain swamp and overflowed land. The trial court gave judgment for the plaintiff, but subsequently made an order granting a new trial, from which order the plaintiff appeals.

The plaintiff’s proceedings in the land-office were in proper form. And the evidence showed without conflict that he took possession of the land “ fifteen or twenty ” years ago, when “ it was mainly a tule-swamp on which the water stood a great part of the year that he dug ditches to drain the land, fenced it, and has ever since been in possession, and has cultivated most of it, but has never resided on it. He resided in a house upon an *140 adjoining tract about a quarter of a mile from the land in controversy,— the whole being “ inclosed in a general inclosure embracing about one hundred acres, and constituting one farm.”

Upon this evidence the court instructed the jury that it was not necessary that the plaintiff should reside upon the tract in controversy; and under this instruction the jury found that the plaintiff was a “settler” upon the land at the time the defendant’s application was made. The court filed findings…