Sprague

The action is ejectment against several defendants, for the recovery of fifteen hundred acres of land, claimed by the plaintiff to be included in the patent for a confirmed Mexican grant, under which the plaintiff deraigns title. The defendant Sprague (who is the only appellant) disclaimed title to all the land in controversy, except a tract of one hundred and seven acres or thereabouts, which he claims under a patent from the United States, issued to him as a preemptor, subsequent in date to the patent under which the plaintiff claims. The cause was tried with a jury, and at the trial the sole controversy was as to the correct location of the line called for in the plaintiff’s patent, as running from station 24 to station 25; the defendant claiming that station 25 was at a post set in a mound of stones, while the plaintiff claimed that the correct location of that station was at another post in the vicinity set at the time of the survey in the field; but which has disappeared. If the defendant’s theory as to the location of station 25 was correct, the plaintiff’s patent would include none of the land patented to Sprague. On the other hand, if the plaintiff’s theory was correct,…