A rehearing was granted upon the petitions of both parties, and with the expectation, on our part, that on a re-argument of this complicated case, much additional light would be shed upon several points that, in the present state of the record, are quite obscure, but the cause has been resubmitted upon the former briefs and the petitions for rehearing. We shall, therefore, not pass upon any of those questions which, in our former opinion, we declined to consider, for reasons there stated; but will notice some of the points made in the petitions for rehearing.
The learned counsel for the appellant requests the Court “to fix with certainty the starting point in the deeds to Coghill and Whitcomb.” To do so would be to find a fact, and that is the province of the jury, not of the Court. We have attempted to give a construction to the deeds that will serve as a means—a rule—to the jury, by which, coupled with the evidence, they may find the beginning point of the land described in the Coghill and Whitcomb deeds. We frequently state a portion of the facts in a case, mot as finding them from the evidence, but to give application and point to our reasoning. If we mistake the facts or the evidence, it cannot by any possibility benefit or injure either party in a new trial of the action, for in that forum the parties must again produce their evidence and have the facts found, in the same manner as required at the first trial. If we had been of the opinion from *456the evidence that the beginning corner was at a certain tree or stake on the river, and had so stated, and if on a new trial it should appear that another tree or stake was the point of beginning, our opinion would not overrule the effect of such evidence. The counsel affords in his petition, a better illustion than the case we just supposed. He claims that we are mistaken in saying that the southeast corner of the rancho of Larkin’s children was uncertain or undetermined. We saw no evidence in the record showing that the rancho had been surveyed, or that the corners had been established, and in the absence of such evidence we considered that at the date of the deed to Whitcomb the rancho had no defined corners; but if on a new trial it shall appear that a survey had been made or that a line or corner had been established, the jury or the Court below will so find, without regard to what our opinion—not finding—of the fact may have been.
In regard to fixing the starting point, we have done only that which we are authorized by the power and jurisdiction of the Court to do; that is to say, to construe the deeds and to declare the law arising.upon our construction of them, and our decision thus given will govern the Court below and the jury, in ascertaining the bounds of the premises described in the deeds.
We adhere to the construction of the deeds we have given, holding that the two leagues in length should be measured in a straight line from the point where the southern line of the rancho of Larkin’s children intersects the Sacramento River. The position of the southern line of the rancho of Larkin’s children, like any other fact in the case, must be proven on the new trial, by competent evidence. Our opinion that it was or was not proven at the first trial, will not dispense with proper proof at the new trial. We must have been strangely unfortunate, in the selection and use of language to express our opinion, in construing the deed of Larkin to Whitcomb, if the learned counsel is justified in saying that “ it appears from the opinion that it was decided rather from the presumed or supposed intention of the parties to the deed, rather than *457from the language itself of the deed,” etc. We attempted to read and interpret the words of the deed “ in the light of the surrounding circumstances.” We ascertain the intention by an examination of the words of the deed, not by a resort to presumption or supposition; and we question the surrounding circumstances to learn the meaning of the terms employed by the parties—to enable us to occupy, as nearly as may be, the position of the parties when executing the instrument.
It will be a sufficient answer to the statement of counsel, made in connection with his remark just cited—that he drew the deed and used the language therein contained, to express the intention he now contends for—to say that he cites no authority, that permits the parties to a deed, to take the witness stand, and explain the meaning of the instrument they have executed.
If the language employed in describing the distance was the same as that used in the description of that portion of the land left out of, and excepted from the conveyance, there would be far more force in the appellant’s views of the proper construction. In describing the distance of the point of beginning, from the rancho of Larkin’s children, the words are: “ Two Spanish leagues in length along the said river;” and in respect to the excepted land the language is : “A tract of land two Spanish leagues in length along and with the said river.” A road may be said to run along a river that passes from point to point on the river, without following its meanders ; but the boundary of a tract of land extending along and with a river, would coincide with the meanders of the river. Parties intending to describe a course or distance, coinciding with the bank or thread of a river, could very readily, and naturally would use language like that employed by Mr. Green, the surveyor, in giving his testimony—“ the meanders of the river”—or words of similar import.
Counsel insist that the tract conveyed was not nine leagues in quantity, and the excepted portion two leagues in quantity— that is, leagues in area of land. We interpret the deeds in this respect as does the counsel for the appellant. The terms *458“ the upper two leagues ” and the “ lower nine leagues ” were used in the opinion as convenient terms of designation, to avoid a long paraphrase. Our construction of the deeds, gives two leagues as the length of the upper portion of the rancho, not included in the conveyances to Coghill and Whitcomb, without regard to its width; and speaking of the lower nine leagues conveyed to them, we said: “ From the point of beginning, the eastern line extended down and followed the river nine leagues, more or less, to the southern boundary, and the tract extended to the west one league, more or less.” This sufficiently indicates the sense in which were employed the terms “upper two leagues” and “lower nine leagues,” as designating respectively the northern and southern portions of the rancho, as separated by the line drawn westerly from the point of beginning, mentioned in the deeds to Coghill and Whitcomb, without regard to the quantity of land in either tract.
Our attention is again called by the appellant to the deed of the 23d of September, 1851, executed to Seawell and Hastings by Larkin and Missroon—Larkin, professing to act for Missroon under the power of attorney, the execution of which was not proven. The appellant objected to the deed as void for uncertainty, and now holds that if not void, it left in Larkin and Missroon one undivided third of the tract, out of which they professed to convey the undivided two thirds. We were inclined to the opinion that if Larkin had not, in fact, power to execute the conveyance for Missroon, the conveyance purporting to be for the undivided two thirds of the premises, was sufficient to convey the undivided half then held by Larkin, but we did not think the case required an examination and decision of that point, it appearing that whatever interest passed by that conveyance was conveyed to Larkin by Seawell and Hastings in eighteen hundred and fifty-six, subsequent to Larkin’s deed of his interest to Whitcomb. Counsel have failed to point out an important discrepancy between the description of the premises in the two deeds. In our previous examination of the record, we had the impression that the description of the premises conveyed by Larkin and Missroon *459to Hastings and Seawell, by the deed of September 23, 1851, was identical with that in the deed of Hastings and Seawell to Larkin and Missroon of the same date (except that one was of the undivided two thirds, and the other of the undivided one third of the tract of land), and was also identical with that contained in the deed of March 26, 1856, from Hastings and Seawell to Larkin, which purported to reconvey the lands so described in the deed of September 23, 1851, from Larkin and Missroon to Hastings and Seawell, and which professed to recite the precise description in the deed of September 23, 1851; but upon a further examination of the transcript, it is found that the descriptions materially differ. In the deed of September 23, 1851, by Larkin and Missroon, a portion of the description is as follows: “ Two Spanish leagues (or dos sitios de ganado mayor) of land, on the west bank of the Sacramento River, part of the land formerly known as the Coins tract, including the Town of Colusa,” etc.; while in the two other deeds the description is: “ Two Spanish leagues (dos sitios de ganado mayor) of land, on the west bank of the Sacramento River, part of the land formerly known as the Jimeno grant, now known as the Colusa tract, including the Town of Colusa,” etc. Doubtless one of the latter two deeds was before us when considering the appellant’s point that the first deed was void for uncertainty. If the deed is correctly copied into the transcript, there would appear to be more force in the appellant’s objection, than we formerly gave it. We would be justified in supposing that there was a mistake in one of the copies, and as we might do one of the parties an injury by passing upon a deed incorrectly copied into the record, we decline to pass on any question arising upon either of the three deeds.
The learned counsel for the respondents earnestly urges us to affirm the judgment, for the reason that the evidence shows, as he says, that the defendants’ possessions were not included within the lands described in the appellant’s deeds. We have remarked that we do not agree with him in holding that those deeds convey nine Spanish leagues in quantity. It is the *460duty of the jury—not of the Court—to locate the deeds upon the land, and if the respondents were satisfied that the evidence showed that the deeds, when a proper location of them was made, would not include the land in controversy, they could well have rested their case at that point; but it is their misfortune that they have introduced illegal evidence of such a description that it is impossible for us to determine, whether the jury found for them on the legal or illegal evidence.
If the proof by the witnesses was, as the respondents assert, that they were all, except Roberts, above what they call the dividing line between the upper two and lower nine leagues, it might not necessarily follow that they were entitled to a verdict, for they admit that they were in possession of the “premises in controversy,” which, according to the pleadings, are the premises described in the complaint, and which we understand to extend south of the said dividing line.
No appeal was taken from the judgment against defendant Amos Roberts, and that judgment is not before us for review.
The judgment entered May 14, 1863, is reversed and the cause remanded. V