The following opinion on rehearing was filed October 5, 1905. Judgment of district court affirmed:
Letton, C.The facts in this case are recited in the opinion filed at the former hearing, ante, p. 307. At the former hearing, the cause was reversed on account of the giving of two instructions, the first of which submitted to the jury the question of whether or not the defendant Campbell and his grantors had been in possession of the strip of land in controversy for 10 years prior to the time the action was begun. This instruction was held to be erroneous, mainly because it “was admitted on the oral argument to be without sufficient support by the evidence,” and it is said that *311an instruction submitting the affirmative of an issue which there is insufficient evidence to maintain is prejudically erroneous. We have heretofore said: “Where there is any evidence to support an issue presented by a party to an action, he is entitled to have the jury instructed with reference to his theory of the case, if supported by competent evidence and presented by the pleadings.” And this may be considered to be settled law in this jurisdiction. Hancock & Walters v. Stout, 28 Neb. 301; Cunningham v. Fuller, 35 Neb. 58; Boice v. Palmer, 55 Neb. 389; Western Matress Co. v. Ostergaard, 71 Neb. 575.
A re-examination of the record shows that while the evidence is conflicting, a number of Avitnesses testified to the adverse holding of the tract of land in question for more than 10 years by defendant and his grantors. The force of this evidence is weakened by testimony upon the part of the plaintiff’s Avitnesses, that for a part of the time rent Avas paid for the use of such land to the plaintiff, but the identity of the tract of land for Avhi'ch rent was paid with that claimed by the defendant is in dispute. The testimony of the defendant’s Avitnesses if uncontradicted would have sustained a verdict based upon adverse possession and this is sufficient to justify the giving of the instruction. The Aveiglit and sufficiency of the testimony wore for the jury. They may have disbelieved the testimony of one side and believed the other. It is true, that upon the first oral argument in this court, it was admitted by one of the counsel for defendant that the evidence was not very strong upon this branch of the case, but it Avas not conceded that the question Avas erroneously submitted. One of the theories upon Avhich the case was tried was that the defendant and his grantors had occupied the premises for the statutory period, and he was entitled to have that question submitted to the jury.
As to instruction number tAVO, requested by defendant, which is assigned as error, it is objected that the instruction so far as it advised the jury that the plaintiff must recover, if at all, upon the strength of his own title to *312the property, and that he cannot rely upon any alleged Aveakness of title in the defendant is erroneous, and it is argued that this is a dispute as to the boundary line and not as to a question of title. But the issue presented by the pleadings was as to the title to a certain strip of land containing about 18 acres. The plaintiff alleged ownership Avhich the defendant denied. The plaintiff was required to establish his title to the same by competent proof of oAvnersliip, and if he had failed to do so, he could not recover in the action. At the trial he produced his muniments of title, but he Avas further required to sIioav, that the particular tract in dispute Avas covered by the description in his paper title and he was in fact compelled to recover upon the strength of his own title to the property in controversy.
Objection is further made to the phrase “a fair preponderance of evidence” used in this instruction. The use of the expression “a fair preponderance of the evidence” has been repeatedly held by this court not to be reversible-error. M-urray v. Burd, 65 Neb. 427; Dunbar v. Briggs, 18 Neb. 94; Marx & Kempner v. Kilpatrick, 25 Neb. 107; Altschuler v. Coburn, 38 Neb. 881. We agree Avith the former opinion that the use of the qualifying word “fair” is inadvisable and not to be commended, but as the record stands in this case we cannot see wherein the jury were in anyAvise prejudiced thereby.
Instruction number eight, as to the weight to be given the original field notes, is complained of. Taken with the other instructions upon this point, Ave see no error therein. While perhaps its statements would not be sufficiently specific if standing alone, the instructions asked for by plaintiff, and given upon this branch of the case, supply what may be lacking in particularity.
Much the greater part of the evidence in the case, which consists of nearly 500 pages, is directed to the question of where the true original government corners upon the line between sections 15 and 16 were situated, and it is evident that this was considered the most important question in the case. We are satisfied that the attention of the jury *313to the determination of this question of fact, was in no wise prejudicially affected, either by these instructions or by the other matters complained of by plaintiff in error.
In the whole case, we find no error prejudicial to the plaintiff in error, and recommend that the judgment of the district court be affirmed.
By the Court:For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.