Opinion by
W. D. Porter, J.,The testimony admitted under the exception, which is the foundation of the first assignment of error, was not in any sense an attempt to prove by parol the contents of the written agreement ; not a covenant or condition of the agreement was referred to by the witness. The testimony, if believed, established that two surveyors, Marstellar and Mitchell, by direction of the owners of two adjoining tracts of land, in 1892, distinctly marked upon the ground the line between the tracts, with regard to the location of which there had previously been litigation, and that the parties had from that date to the present time recognized the line so marked as the limit of their respective possessions. That the evidence was admissible to show the actual condition of affairs upon the ground and the location of the line as recognized by the parties is too clear to require citation of authority. The evidence established beyond any controversy that the consentable line had been distinctly marked upon the ground, and that the parties on each side had recognized it as the boundary, and continued to do so at the time of the trial of this cause. Marsh, under whom the defendant pretended to claim, testified that when he bought from Shaw & Company, who had been *347parties to the marking of the consentable line, he bought only to that line which was distinctly called to his attention.
The language in that part 'of the charge of the court covered by the second and third assignments of error is to be considered in connection with the undisputed facts in the case, and the evidence bearing upon the facts which were controverted. There was not a scintilla of evidence tending to show that the appellant had any title to or right in the timber for cutting which, he was indicted. The fact was undisputed, under the evidence, that the ownership and possession of the land and timber were in the Lehigh Yalley Coal Company. The article of agreement between' Marsh and the appellant, under which the latter acq uired his rights, conferred no title to any timber north of the Biebleheimer line, which was parallel to but seventy rods south of the consentable line to which the language of the learned judge referred. The court below would have been justified in saying to the jury that the appellant had no actual right to cut timber within seventy rods of the consentable line. The guilt of the defendant was not, however, dependent upon his legal rights but upon his honest and reasonable belief as to the location of the land described in his written agreement. The appellant attempted to satisfy the jury of his honest but mistaken belief of his ownership of the timber in question, and testified that at a date long prior to the execution of the agreement with Marsh he had entered into negotiations with the latter for the purchase of the timber upon the land, that he and Marsh had gone to a point somewhere in that region but a long distance from the land now in question, and that Marsh had then in general terms represented that he owned all the timber in that part of the country, but did not point out any line or boundary, which terms the defendant testified covered the tract upon which he after-wards trespassed, but at that time they failed to come to any agreement with regard to the sale of the timber and the negotiations were suspended; that after the lapse of a considerable time he bought of Marsh, the timber upon the land described in the written agreement, and that Marsh then represented that this included all the timber which he, Marsh, owned in that part of the country, and that he, the appellant, believed this to include the timber now in question. Marsh testified that no such representations were made, that he never had title to the *348land, for cutting timber upon which, the defendant was indicted, and that he pointed out upon the ground to Quiggle, the Biebleheimer line, which marked the northern boundary of the land described in the written agreement. Here was an issue of fact squarely raised, if the jury believed Marsh, then the testimony of the appellant was untrue, and he had no grounds whatever for believing that he had any right to cut the timber in question. The learned judge of the court below submitted this question to the jury in language of which the appellant certainly has no ground for complaint.
There being no question under the evidence that the timber in question was the property of the Lehigh Yalley Coal Company, whether the appellant cut it under a bona fide claim of right, was a question of fact for the jury, it would have been error for the learned court below to pass upon it as a question of law. The point submitted by the defendants might properly have been distinctly negatived, but the qualification which the court added to the refusal did the defendants no harm.
The judgment is affirmed and the defendant is ordered to surrender himself to the court below to the end that the sentence be carried into effect.