MOTION TO REHEAR IN THE SUPREME COURT.
Waelder Upson filed a motion to reconsider. They argued upon the facts to show that the court had misapplied the legal principles used.
Lindsay, J.,in response to the petition for rehearing. — We have carefully examined the petition presented by the counsel for the appellant for a rehearing in this case. Notwithstanding the very able and ingenious criti-cism of the opinion of the court, and the elaborate .and plausible manner of applying the law to the facts in the case, we can discover no sufficient reason to doubt the *276justness of the conclusions at which we arrived in the opinion delivered in the cause. It is supposed by the learned counsel in the argument, orally, by brief, and in the petition, that as, from the announcement in the deed, it was the purpose of the vendor to convey land on both sides of the Comal, ergo, he did convey the whole bed of the stream. But it should be recollected that the deed does actually convey land on both sides of the stream. It is not, however, necessarily on both sides at the point where the controversy originated. The line leaves the stream below the disputed territory, and actually embraces land, in the boundary of the survey, below the land of the appellee. So, in fact, the deed does what the vendor professed to be his purpose, convey land on both sides of the stream. This therefore conflicts in no degree with the opinion.
It is * further urged that the witness who testified as to the date of the appellee’s possession was mistaken; because another witness, who laid off the town of Comal, and delineated a map of it shortly after, stated some physical circumstances in connection with the land which was contradictory to his statements. The first witness swears positively and affirmatively to the fact. His credibility was not directly assailed. It was the province of the jury to judge of the weight to be attached to the. testimony of each of the witnesses; and, unless it was made clearly manifest that the jury had grossly abused their privilege of thus judging, it would be an abuse of the discretion of this court to undertake .to control their judgment by disturbing their verdict. "Wherefore the motion for a rehearing is
Overruled.