majority">By the Court, Sawyer, J.:

This is the same case reported under the title of Sneed v. Osborn, 25 Cal. 619, where a statement of the principal facts will be found. Our former decision, so far as it is applicable, must control the rights of the parties. Under the principles of that decision, the survey made by Ide does not affect the rights of the parties, unless Harrison, or those claiming under him, and through whom plaintiff claims, have acquiesced in that location. The evidence relating to the neighboring tracts 'purchased by, and surveyed for, Ingersoll, Smith, Truebody and Coombs, was properly rejected. These were acts of strangers, who, at most, for their own purposes, assumed the existence of a fact—the making of the Ide survey. But such assumption is no legal evidence, in the action between these parties, that the fact existed. The fact itself, however, was proved by other and competent evidence, and it is not at all likely that the jury had any doubt as to its existence. The verdict must have been based upon other considerations.

These remarks apply to all the testimony excluded relating to lands outside the Boggs and Harrison tracts. So, also, the deeds from Harrison to Angus L. Boggs and Wm. M. Boggs, of the Harrison tract, and the survey of the east half of said tract of A. L. Boggs, were properly excluded. The deeds do not mention the Ide survey, nor tend in any way to show that Harrison acquiesced in that survey. The survey of the east half for A. L. Boggs and by his direction, and his occupancy under it might tend to show that A. L. Boggs acquiesced in that survey and location, and that he is estopped from denying the location ; but the plaintiff does not claim under him, and is not affected by his acts. There is nothing in the testimony offered which tends to show an acquiescence by Wm. M. Boggs.

The acts and declarations of Sneed and McNeil were admissible, for the purpose offered. Osborn, the original defendant in this suit, and under whom Woodward claims, was in possession of the southwest quarter of the Harrison tract up to the *434line as located according to the Ide survey, excepting ten acres in the northeast corner, which had been sold to McNiel, and which had also been fenced off in accordance with the Ide survey. If, therefore, the Ide survey was erroneous, Osborn was in possession of a portion of the land of Sneed, and a portion of the ten acre tract owned by McNeil subsequently conveyed by him to Sneed, being the land in dispute. The state of the defendant’s evidence was such that it might be 1 inferred by the jury that, notwithstanding an erroneous location according to the Ide survey, Sneed, and McNeil, under whom Sneed claimed the ten acre tract, had acquiesced in the erroneous location for a period so long as to estop them from questioning it. It, therefore, became necessary for the plaintiff to rebut such inference, and the only evidence of non-acquiescence during the period in question was, of course, the act and sayings of Sneed and McNeil themselves. It was from their acts and declarations relating to the matter in question that their acquiescence or non-acquiescence must necessarily be inferred. Those acts and declarations must, therefore, necessarily be competent evidence on that point. The evidence was expressly offered for and limited to that purpose. The record discloses no good ground for claiming that their declarations were made in the course of proceedings to effect a compromise in such a manner as to render them inadmissible in evidence on that ground.

The first instruction complained of might, perhaps, have been so framed as to define a little more sharply the idea intended to be conveyed, but it is scarcely possible that the jury could have understood the Judge to state, or assume as proved, the main issue of fact in the 'case. But assume it to be possible, the instruction is limited to the acts of Harrison alone, and the evidence is positive and uncontradicted by any fact or circumstance that Harrison was not present at the Ide survey, and there is no evidence that he ever knew of it, or subsequently did anything in relation to the land except to convey it in terms in no way recognizing the survey.- If there is evidence of acquiescence it is of those claiming under him, *435and not of Harrison himself. The third instruction given and complained of when applied to the evidence could not have misled the jury. ■

The judgment must be affirmed. So ordered.

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