concurring.
There was, doubtless, irrelevant testimony admitted on both sides, and the rulings of the Court are not free from errors; but it is clear to my mind that without any of the errors committed the verdict of the jury must have been the same. It is clearly apparent from the evidence properly admitted upon the question of possession—in which it can scarcely be said there was any conflict—that the plaintiff was in the act of attempting to acquire possession by an unjustifiable trespass upon an actual possession in the defendants of long standing; and that this attempt was immediately, upon the same day, interrupted and frustrated by defendants, in the manner stated by Mr. Justice Currey, before the acts of plaintiff had crystallized, so to speak, into that actual, peaceable possession contemplated by law, which constitutes the foundation of the right to maintain the action of forcible entry and detainer.
The Court expressly instructed the jury that the right to the possession could not be determined in this action, and substantially told them that the survey of Meador, and the conveyance to him by defendants, could only be considered with reference “ to the extent and boundary of such possession.” For the purpose to which this testimony was thus limited, I think the evidence admissible. I am satisfied, from the testimony, that the plaintiff had acquired no such possession, as against the defendants, as would entitle him to maintain this action, and that on this ground the judgment should be affirmed.