¶1The principal grounds of exception in this case are, 1st. That the charge of the Court was calculated to mislead the jury, by not taking for granted a fact which was well established, to wit: that the line in dispute was originally run by the Surveyor; and 2d. That the verdict is contrary to the evidence.
¶2The Court charged the jury, that “if the evidence before you does not show that the boundary line between the lands of plaintiff and defendant was originally run and marked by the Surveyor, or if the evidence shows you that that line, if run and marked, cannot now be ascertained, then it will be your duty to find for the plaintiff;” which would establish the straight line as the true one. The evidence showed very few landmarks establishing the straight line, perhaps on account of the prairie and the farm, through which it passed; and the other line was so crooked, and there was so much said about paths through the bottom, that it was not rendered certain that this was a line run in making the survey. Under these circumstances the Court ought not to have charged the jury, that the line was run; and there is nothing in the charge to indicate his opinion, in the least degree, that the fact of running of the line was a doubtful, or that it was a leading matter of inquiry. Our statute requires that the Court shall not charge upon the weight of evidence, and hence it must be very careful what facts are taken for granted in the charge.
¶3*729The evidence before the jury was conflicting, and although the preponderance may be in favor of appellant, the verdict cannot be disturbed. The charge was pointed and impartial, and so plainly expressed, that it could not be well misunderstood; and there is nothing in the case to show that the jury did not exercise their best judgment, without prejudice, upon a doubtful question. The preponderance of testimony against the verdict, if that fact can be admitted, is rather that of quantity than of weight; and not in a degree that would authorize this Court to adjudge it to be wrong. Judgment is affirmed.
¶4Judgment affirmed.