Decided August 4, 1908.
On Petition for Rehearing.
Mr. Justice Eakindelivered the opinion of the court.
It is urged by this petition that the errors upon which *182the cause was reversed relate to immaterial matters, and, therefore, are not prejudicial.
10. This point was not suggested by the brief; but the first error is in excluding the evidence of Sandberg relating to the location of the north and south quarter section line through section 16. The premises sought to be recovered are located and described, both in the complaint and in the decree, by that line; and, although the west line of the tract is said to be identified by an old fence, yet, if the line of the fence be obliterated or questioned, then the whole tract must be located by the quarter section line alone, and in the case of a verdict for defendant, Section 330, B. & C. Comp., says that the verdict shall find “that the plaintiff is not entitled to. the possession of the property described in the complaint,- or to such part thereof as the defendant defends for, and the estate in such property or part thereof, or license or right to the possession of either, established on the trial by the defendant, if any,” and Section 339 provides that “the judgment therein shall be conclusive as to the estate in such property and the right to the possession thereof,” thus making the east line, namely, the quarter section line, also very material in case of a verdict for defendant. This was treated as an issue at the trial, and we deem it material.
11. The instruction held to be erroneous, to the effect that defendants’ possession was wrongful and unlawful, was sufficient to authorize a verdict in favor of plaintiffs for the possession; and as the verdict did not find the nature or duration of plaintiffs’ estate in the property, but only for the possession, the jury may have based their verdict upon that instruction alone, and we must presume it was prejudicial.
The motion is denied.
Reversed: Rehearing Denied.