*120On Petition for Rehearing.
Rabb, C. J.The appellee earnestly urges in his petition for rehearing that the court in deciding this case failed properly to grasp the-question presented by the record, and in its decision proceeded upon an erroneous theory, his contention being that the special findings affirmatively show that the appellant is appellee’s remote grantor of the premises in dispute, and that hence the statute of limitations does not run in favor of appellant as against appellee’s right to the land, and that appellant cannot acquire title to the premises as against appellee by prescription.
2. If the special findings did disclose that appellee held the legal title to the premises in dispute as the grantee, near or remote, of appellant, then the point urged by appellee would be worthy of serious consideration; .but the difficulty arises in applying the principle asserted by appellee to the facts appearing in the special findings. It does not there appear that the piece of ground described in the complaint was ever conveyed by appellant to appellee, or to any other person. While the special findings disclose that appellant did convey to appellee’s grantor the premises adjoining the land described in the complaint,, this is as far as it certainly goes. It does not set forth a description of the land contained in the appellant’s said conveyance. We might surmise from what does appear in the special findings that the appellant conveyed a tract of land to the appellee’s grantor, that had for its western boundary the line running north and south through the center of the quarter section, and that the old fence referred to in the special findings was supposed by the parties to be on that line; whereas, the true line dividing the quarter section was several rods west of the fence, and threw the lands about which the parties dispute in the east half of the quarter section. The complaint, however, expressly described the land that *121is in controversy here as being' in the west half of the quarter section, and therefore, if what we surmise was properly inferable, the decree could not be sustained, because the description of the premises in the complaint would not fit the premises about which there was a dispute between the parties.
3. The case was evidently tried and decided upon the theory that the survey was conclusive between them, no appeal having been taken therefrom, and in this view the court below erred.
Petition for rehearing overruled.