Denied January 30, 1917.
On Petition for Rehearing.
(162 Pac. 863.)
Appellant’s petition for rehearing denied.
Mr. Turner Oliver, for the petition.
Mr. Jerry P. Bush and Mr. A. W. Schaupp, contra.
In Banc.
Mr. Justice Harrisdelivered the opinion of the court.
A re-examination of the testimony brings us to the conclusion announced in the original opinion: McCully v. Heaverne, ante, p. 650 (160 Pac. 1166). The evidence for the plaintiffs details the circumstances surrounding the survey, explains the setting of the stakes, *655and tells about distributing tbe rails and building tbe fence. The overwhelming weight of the evidence supports the- contention of the plaintiffs that McCully and Roberts agreed upon the line, and that the fence was constructed upon the agreed line except where, •on account of a steep hillside or bluff, it was necessary to depart from the line. A petition for a rehearing urges that permission should be granted to take the testimony of Mrs. Ella Averill, a witness recently discovered by the defendant and who in 1882 was the wife of Roberts. She says in an affidavit that she did not know of any agreement between her former husband and McCully concerning the boundary line, and that .she once heard Roberts say “that some day he would have to move the fence out to the line.” The fact that she did not know of an agreement would have but slight tendency to prove that no agreement was made, especially when it is remembered that there is much affirmative evidence to show that the agreement was made. F. D. McCully testified that the agreement was in fact made; that Vail, who “was the chief surveyor in this section of the country at that time,” ran the line in 1882; that the fence was built; that afterward in 1883 Roberts and McCully “called the county surveyor from Union County, Mr. Eugene Chase,” and “he established this boundary line” in the presence of McCully, Roberts, Vail and probably W. C. Fleener, and Chase located the line exactly as it had been run by Vail; and that “we agreed that this was the comer as established by the county surveyor, and proceeded from that to lay out the town of Joseph, from that work in the fall of ’83.” C. L. Hartshorn stated that he helped to get “the rails out, or a portion of them, for building this fence”; that Roberts and McCully *656“came out to where they had the stakes set up and stones, and they showed me where to put the rails”; and again, that “Mr. McCully and Mr. Eoberts were-present there, both of them, and showed me where to put the rails and I distributed the rails along this, supposed line.”
6. Assuming, but not deciding, that it would be competent for Mrs. Ella Averill to testify that she heard her former husband say “that some day he would have to move the fence out to the line,” nevertheless the statement would not necessarily tend to disprove the existence of the agreement. On account of a steep hillside a portion of the fence was not laid upon the agreed line, and consequently Eoberts might well have said that it would be necessary at some time to move the fence “out to the line.” The declaration ascribed to Eoberts is not necessarily inconsistent with the agreement testified to by McCully.
7. The petitioner contends that she was in the actual' possession of practically all the disputed land. The-suit was commenced in October, 1914. The trial court expressly found from the conflicting evidence that the land “was not at the commencement of this suit in the-actual possession of another, and that the same was-not at that time in the actual possession of the defendant.” It is a noteworthy fact that as late as May,. 1915, or six months after the commencement of this, suit, the defendant was attempting to obtain possession of the land by inclosing it with a fence, and her attempt thus to gain possession is of itself evidence that she did not actually have possession. As we-read the record, the plaintiffs did not make the broad admissions contended for by the defendant. The evidence was conflicting. The .trial court had the some*657times incalculable advantage of observing and hearing the witnesses.
The decree was a just one. The petition for a rehearing is denied.
Affirmed. Rehearing Denied.