On Motion for Rehearing.
In the original opinion the statement was made that the pile of rocks which Peter Kneupper took to mark the northwest corner of survey No. 796 was situated in the west line of survey 798, and described by reference to a Spanish Oak tree which bears S., 45° E., 20 varas therefrom. This mistake was one made in writing, and not by reason of any belief -that the rock pile described by the bearing tree was the one taken by Kneupper as being the northwest comer of survey No. 796; for it was fully understood from the field notes of the land sued for, which had to be carefully examined in drawing the judgment, that such rock mound was in the east line of survey 798, and the intention was to state that it was taken by Kneupper to be the northeast corner of survey No. 796. The fact is that we were mistaken in assuming that it was the mound referred to by Kneupper as the one he took to be the northeast corner of No. 796. The testimony of both of the Kneuppers shows frequent reference to a map or plat not contained in the statement of facts, and many of such references were not accompanied with explanations such as would make the testimony clear to a person who did not see the witness point to the map while testifying. Peter Kneupper testified concerning two rock piles, and, in answer to a question by the court, stated he claimed from the rock pile where he built the fence across to the other rock pile. The rock pile, with the bearing tree, is located about on a line with the fence; and, overlooking the fact disclosed by the field notes, there being no map or plat, that the east lines of surveys 798 and 796 do not connect, it was assumed that Kneup-per referred to said mound as one of the two between which he undertook to erect his fence. This error caused us to infer that the fence ran south from the point where it intersects the east line of survey No. 798.
Appellants contend, further, that we erred ini stating that the fence was begun at the place taken to be the northwest corner, and erected for a distance of 1,177 varas before it became necessary to make the offset into what was recognized to he Gourley’s land. They contend that the Kneuppers began on the east, at the rock pile pointed out by John Kneupper as the northeast corner of No. 796, and worked towards the west. This contention is supported by the testimony of Peter Kneupper, but Henry Kneupper stated that they started “on the northwest corner of survey No. 796,” and, taking his testimony as a whole, we understood it as supporting the conclusion announced by us. Of course, if there is a conflict, it must be decided in favor of the trial court’s findings. Upon a reconsideration of Henry Kneupper’s testimony as a whole, we find it confusing, and conclude we should adopt appellant’s contention as true, that the Kneuppers began the fence at the mound pointed out by John Kneupper, and situated about 514 varas east of the east line of survey No. 798. The fence was then constructed on a straight line west for 462 varas. Peter Kneupper testified it was run on a straight line and Polk testified to the distance. At such point, 462 vajras west, the fence bends north, and from the testimony of Peter Kneupper it is apparent that this point is the beginning point of the bdnd into what he recognized to be Gourley’s land, which bend was made for the purpose of getting around the ravine. Polk ran west from a point 8 varas south of the beginning point of the fence, and found that the fence bent slightly north,' so that when he reached a point 1,83S varas from; the beginning he was 30 varas south of the fence line. This corresponds to the field notes of the land in controversy, which shows that the fence, after running around the ravine, was continued on a straight line for 1,177 varas on a course running one-half degree north of west. It therefore appears, also, that for a distance of about 1,639 varas out of 1,838 the fence indicated the adoption of a definite line, and that only for a short distance was there any departure from such line, and that was made for the purpose of running around a deep ravine, and Gourley’s consent was obtained before such bend was made. Appellants assume that we' attached great, if not controlling, importance to the fact that the fence was begun on the west and the agree*512ment made with Gourley after 1,177 varas thereof had been erected. We regard it as immaterial whether the agreement was made before or after the 1,177 varas of fence was erected. Peter Kneupper testified that Gourley asked him if he was going to fence, and he told Gourley he wanted to have everything right; to get an engineer and take Gourley along; and at that time Gourley’s daughter-in-law was ill, and Gourley told him to fix the fence at Kneupper’s expense and he would pay Kneuqiper afterwards. He also testified that he started to go straight through in building the fence, and saw he could not do it, so he went to Gourley, and got his permission to run on Gourley’s land in order to get around the deep ravine. He also testified that all of the fence is straight except that around the ravine. All of this testimony must be taken as true in deference to the coulrt’s findings. As Gourley knew that Kneupper intended to fence his land, and was informed after about 460 varas had been built that Kneupper found it advisable to depart from the line adopted by him, and go on Gourley’s land in order to get around a ravine, and knew that afterwards the straight line was resumed, he certainly knew that the Kneuppers claimed the land south of such straight line, and that they only recognized his ownership as to that lying north of su;ch line.
We are unable to find any statement in the original opinion which we consider sufficient to justify the statement in the argument in the motion for rehearing to the effect that, “according to this court’s opinion, Kneupper bound himself toi hold for Gourley and his assignees every foot of Gourley’s land that he might take by the fence which he was thereafter to build.” We certainly had no intention of holding that Kneupper made any agreement binding himself to hold for Gourley any land except that inclosed by reason of running around the ravine, and we had no intention of holding that permission to run around the ravine would as a matter of law show that all land in fact belonging to Gour-ley inclosed after making such agreement would be held permissively and not adversely.
We conclude that the facts, as corrected, show that the court was authorized to find that the possession of the Kneuppers was adverse as to all land lying south of the line upon which the 1,177 varas of fence was erected. It is deemed unnecessary to further discuss the other questions in the case.
The motion for rehearing is overruled.