charging the jury:
Gentlemen of the jury:—[1] The statute of this state under which this action was brought reads as follows: “No person shall cut, fell, alter or remove any boundary tree or other landmark * * * under penalty of forfeiting fifty dollars to the party wronged.” Chapter 56, § 1, p. 477, Revised Code (1893).
Justices of the peace are given jurisdiction over penalties and forfeitures, so the original suit was properly brought before a justice of the peace, and an appeal taken to this court is the case which is now before you.
[2] A landmark is defined to be “a mark to designate the boundary of land; any mark or fixed object by which the limits of a farm, a town, or other portion of territory may be known and preserved.”
[3] The sole question for your determination is whether the defendant removed a landmark to the wrong or injury of the plaintiff, the matter of boundary lines or title rights to land are *91not on trial before you in this case, only in aiding you in determining whether the post was a landmark, and that it has been removed.
You want, first, to ascertain whether the post or object removed was a landmark, and that fact being established it is for you to determine whether William J. Brittingham, the defendant, removed the landmark.
Unless you are satisfied by the preponderance of the evidence that a landmark was removed and that it was removed by the defendant, you cannot render a verdict for the plaintiff.
|4] In civil cases, suits between individuals, the proof of the case is dependent upon the preponderance of the evidence, which means the greater weight of the evidence, so when you take this case to your room you are to weigh and consider the evidence as it has been adduced from the stand, and you are to give the verdict to that side which has produced the stronger evidence, the preponderating testimony.
[5] In cases where there is conflicting testimony, as in this case, you are to reconcile all the evidence if you can, and not being able to do that, then you are to weigh and consider all the testimony and you are to believe that testimony which you consider the most worthy of belief and reject that which, in your opinion, is less worthy of credit, taking into consideration the bias or interest that the witnesses may have in the outcome of the case, and also considering the intelligence of the witnesses and their opportunity to see and know the facts to which they testify.
If your verdict is for the plaintiff it must be for fifty dollars, the amount of the penalty fixed by the statute.
If you are not satisfied by the greater weight of the testimony that defendant removed the landmark as charged, then your verdict should be for the defendant.
The jury disagreed.