The opinion of the court was delivered by
Royce, J.The issue between the parties in the county court was, whether the locus in quo upon which the trespass was alleged to have been committed, was a part of lot No. 163 or 162 ; and any testimony which had a legal tendency to show to which of those lots the locus in quo belonged, was admissible. It was admitted that what was called the Johnson survey, made in 1801, was the correct one, and most of the evidence was directed to the question as to whore Johnson run the line between the two lots. It appeared that the lands of the town had, ever since the report of Johnson’s survey was recorded in 1801, been deemed and occupied by the owners in accordance with that survey. Wm. D. Kidder purchased and took a conveyance of this lot in 1852, and the plaintiff derived his title in 1870 from his heirs.
The plaintiff, without objection, introduced evidence tending to show, that the said Kidder in his lifetime, ocupied the locus in quo as a part of lot No. 163, and that such occupation was continued by his administrator, and tenants under him, down to 1863. The defendant requested the court to charge that under the declaration, all the testimony as to the use and occupation of lot 163,. or any land claimed to be a part thereof, had no tendency to show where the true line between lots 163 and 162, was, in point of *343fact, run by the said Johnson’s survey; which the court omitted to do; and to this omission the defendant excepted.
While evidence of use and occupation alone, would have no legal tendency to show where a disputed line was ; such evidence in connection with the fact that such line and occupation was in accordance with the line in dispute, would have a tendency to show where the line was. Hence the defendant was not entitled to the charge requested. ■ The only other exception which has been urged here, is as to the charge upon the question of the burden of proof. It appeared from the proprietors’ records, that they voted to divide the land in town into lots of 100 acres each, and that the committee appointed to make the survey, made a report of such survey accordingly, which was accepted and recorded. The legal presumption arising from this evidence is, that such a survey and division was made as is stated in the report, and the burden of proof is upon the party who claims. that a different-survey and division was made, to establish the fact; and this is the way in which the subject was left to the jury by the charge.
Judgment affirmed.