¶1On Motion for Rehearing.
¶2(Submitted November 22, 1907. Decided December 3, 1907.)
¶3delivered the opinion of the court.
¶4Plaintiff’s motion for a rehearing in this case, as we understand it, proceeds upon the assumption that upon appeal to this court in an equity case, the appellant is entitled, if he so desires, to a trial de novo. We do not understand that the statute (Code Civ. Proc., sec. 21, amended Session Laws, 2d Extra. Session, 1903, p. 7) requires or permits a review to this extent. AYhile it does require this court “to review all questions of fact arising upon the evidence presented in the record …
¶5and determine the same,” from the very nature of the case, as was pointed out in Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6, and Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918, the review may not go further than to determine whether there is a decided preponderance in the evidence against the findings of the trial court. Though the evidence is presented in question and answer, it is in cold type, without the gestures, behavior or appearance of the witnesses, and often, as in this case, the illus*91trations made by them through the medium of maps, diagrams and other instrumentalities used to make their statements intelligible. It would be manifestly out of place for this court to undertake to try a ease and determine it as does the district court.
¶6We concede that when a party relies upon adverse use to •establish a right, his evidence must be clear and convincing; but this rule must of necessity apply more directly to the district court. In a given case, what is not as clear and convincing to us as might be, might have been entirely so to the trial judge; at least this presumption attaches to his findings, and this court is not at liberty to overturn them unless there is a clear preponderance against them, after due and proper allowance has been made for the absence from the record of such elements in the evidence as have not been, or cannot be, reproduced there-, in.’
¶7As we stated in the original opinion, much of the testimony of some of the witnesses in this case is unintelligible, for the reason that counsel failed to have them designate by letters or other mode of identification, the points upon the maps and plats to which they referred. If we assign the meaning to this testimony which counsel insist that it should have, we should certainly agree with them and say that the judgment should be reversed. The presumption must obtain, however, that it was understood by the trial court as lending support to defendants’ case, and hence that it tended to support the findings as made. Are we justified ih saying that it was not clear and convincing to him? We have read and re-read the record carefully in our endeavor to arrive at a just conclusion in this case. We find no suggestion made in the argument accompanying the motion that induces us to think that upon a rehearing we might reach a different conclusion. The motion is accordingly denied.
¶8Rehearing denied.