Plaintiff and defendant are the owners, respectively, of adjoining governmental subdivisions, or tracts of land. There is no dispute about the title of either, but the divisional line between them is a section line, and the government surveyor’s monuments at the corners of the sections have been effaced by time and the action of the elements, and the plaintiff, claiming that the defendant *308had encroached upon a strip of his tract lying along the section line, began this action in ejectment to recover possession.
The sole subject of the controversy is the location of the line and each party offered evidence in support of his contention, thus producing a sharp conflict in the evidence.
One of the instructions given, and excepted to, submitted to the jury the defense of 10 years’ adverse possession which was pleaded in the answer, but which was admitted on the oral argument to be without sufficient support by the evidence.
Another instruction, also excepted to, advised the jury that the plaintiff “must recover, if at all, upon the strength of his own title to the property in controversy and that he cannot rely upon any alleged weakness or want of title in the defendant, and if the plaintiff has failed to prove his title and right of possession to the land in dispute by a fair preponderance-of all the credible evidence, you must find for the defendant.” There were a verdict and judgment for the defendant and the plaintiff prosecutes error.
We think that both of these instructions were erroneous. From the former of them the jury had a right to infer, and perhaps did infer, that there was evidence sufficient to support a finding of adverse possession, and for aught that we know to the contrary, their verdict may be founded upon that supposition. It seems to us very nearly self-evident, that an instruction submitting to a .jury the affirmative of an issue which there is insufficient evidence to maintain, is prejudicially erroneous.
Eliminating the defense of limitations, as upon this record must necessarily be done, there is no question of title involved in the litigation. The sole controversy is about the definition of a boundary line and rights of possession dependent thereon. The latter of the foregoing instructions has no meaning applicable to this record, unless it is interpreted as requiring the' plaintiff to es*309tablish his contention as to the location of the boundary line, with that degree of certainty which is required of a plaintiff in ejectment in proving his title when the latter is in dispute, and this requirement is emphasized by qualifying the word “preponderance” by the word “fair.” It is true that in Altschuler v. Coburn, 38 Neb. 881, this court held that the use of the word “fair” in a like connection was not error, citing Dunbar v. Briggs, 18 Neb. 94, and showing quite distinctly that there is no practical difference between such use and a similar employment of the word “clear,” which latter was condemned in Search v. Miller, 9 Neb. 26, and in Marx & Kempner v. Kilpatrick, 25 Neb. 107, and in several other cases. But these latter cited cases were not overruled. Neither Avere they overruled in Dunbar v. Briggs, supra, which is entirely consistent Avith them. It was there held that the use of the qualifying Avord “fair,” in one instruction, was not reversible error, because the correct rule Avas stated in another instruction, and under the circumstances of the case it Avas evident that the jury could not have been misled. But there is no intimation of an intention to overrule or qualify the preceding opinions Avritten.by the same hand, nor any evidence of dissatisfaction with them. On the other hand, the writer indicates quite clearly that, in his opinion, the use of any expression requiring more than a mere preponderance of the evidence is erroneous, unless the vice is corrected by some other feature of the record. The logical deduction from the argument in the opinion in Altschuler v. Coburn, supra, is, therefore, the opposite of the conclusion at which the court arrived, and required a reversal instead of an affirmance of the judgment. In the case at bar the error under consideration is emphasized, rather than otherwise, by directing the attention of the jury, in the same instruction, to the abstract and irrelevant proposition of law that a plaintiff in ejectment whose title is in dispute must recover, if at all, upon the strength of his own title and not because of the weakness of that of his adversary.
1. Ejectment: General Denial: Instructions. In an ejectment case, title by adverse possession may be proved under a general denial, and, when such title is one of the defenses relied upon by the defendant, he is entitled to have the jury instructed with reference to the same if any competent evidence has been introduced to support that issue, even though the evidence may be contradicted or may be considered insufficient by the jury. 2. -: -: -. In an ejectment case, where the defendant’s answer is a general denial, it is not error to instruct the jury that the plaintiff must recover, if at all, upon the strength of his own title to the property, and that he cannot rely upon the weakness of the defendant’s title. 3. Instructions. The use in an instruction of the phrase “a fair preponderance of the evidence” criticised, but held not to be prejudicially erroneous.. For these reasons, it is recommended that the judgment be reversed and the cause remanded for a new trial.
Letton and Oldham, CC., concur. By the Court:For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for a new trial.
Reversed.