¶1ON REHEARING.
¶2We disposed of this case on the theory that all of the land in controversy was situated Avithin the boundaries of section 4, township 4 south, range 4 east, according to extended boundaries of the original Government survey. That Avas a mistake, and our attention is now called to it. A considerable portion of the land in controversy is not in section 4, but lies between that section and Old River, which forms the south boundary of fractional section 33, township 3 north, range 4 east, as originally surveyed. Appellees described that in their complaint and alleged that appellant was in possession thereof. The proof tends to show that most of the clearing is on the part in section 4, but a part of it extends over the north boundary of section 4. This changes the aspect of the case so far as relates to that land outside of the boundaries of section 4, for appellees have failed to prove title to that land. At least, the testimony is not undisputed. They claim title under a deed from Fannie B. Neeley, as executrix, but do not deraign title from the original source. The allegation with respect to the Neeley title is merely that the testator occupied the land a sufficient length of time to give title by limitation. The answer, too, raises an issue on that question, and the denials were as broad as the allegations of the complaint. Therefore, it devolved on appellees to prove their title, for they must recover, if at all, upon the strength of their own title and not upon the weakness of that of their adversary. Besides the question of proof of ownership of the lands in section 33, the evidence does not show, beyond dispute, that the lands were formed as an accretion to that section. We are of the opinion that the court erred in directing a verdict as to that portion of the land in controversy. The judgment for damages is not separable, and we can not determine from the record before us how much was awarded for detention of the land in section 4 and how much for the other land, some of the clearing being on each tract. • Therefore, the error in directing a verdict affects the recovery of damages.
¶3We adhere to our former conclusion that the evidence established, beyond dispute, the title of appellees to the lands described in section 4 and that that was a valid description. The judgment as to that portion of the land is affirmed; but as to the remainder of the lands described in the complaint and as to the award of damages the judgment is reversed and the cause remanded for a new trial. To that extent’the petition for rehearing is granted.