such statements as are provided in the law of practice to present the matters of law and fact to the appellate court for review, provided, of course, that the same are prepared, settled, and certified within the time prescribed by law, (Territory v. Fallis, 2 Mont. 236; Flynn v. Cottle, 47 Cal. 526; McAllep v. The Latona, [Wash.] 19 Pac. Rep. 131.) Therefore an order will be entered overruling respondent's motion herein.

DE WITT, J., concurs. PEMBERTON, C. J., being absent, did not pass upon these questions.

PEREZ, Auditor, v. BARBER.' (Supreme Court of New Mexico. Aug. 24, 1893.)

APPEAL-RECORD-QUESTIONS NOT RAISED BELOW. As the supreme court will only consider questions which were passed upon by the trial court, where the record does not show that any of the pleadings were demurred to, nor that any exceptions were taken to the rulings at the trial, nor that a motion for a new trial was made, it presents nothing for review.

Error to district court, Santa Fe county; Edward P. Leeds. Judge.

Action by Philip J. Barber against Demetrio Perez, auditor of public accounts, for mandamus. Plaintiff had judgment, and defendant brings error. Affirmed.

Edward L. Bartlett, Sol. Gen., for plaintiff in error. Francis Downs, for defendant in error.

LEE, J. This was an action by mandamus, on the part of the plaintiff below, to compel the auditor of public accounts of the territory (the plaintiff in error) to draw a warrant on the treasurer of the territory for the sum of $203.38, in payment of an account allowed by the board of penitentiary commissioners in his favor for services rendered as assistant superintendent of the New Mexico penitentiary during the year 1892. An alternative writ was issued, and a return thereto made, which admitted the allowance of said claim by the board of penitentiary commissioners, but denied their right to so allow it, as during the time that he was acting as assistant superintendent of the penitentiary he was the regularly appointed and acting yard master and foreman of the brick yard of said penitentiary at a salary of $720 per annum, all of which had been paid to him; and that E. H. Bergmann was the regularly ap pointed and acting assistant superintendent of such penitentiary at the time, and was entitled to the pay appertaining to such position; and that J. Francisco Chavez was the duly and regularly employed superintendent of such penitentiary during such time, and had qualified by taking the required oath and giving the necessary bond, and had appointed said Bergmann assistant superintendent, and said Barber (defendant in error) as yard master and foreman of the brick yard, which appointments had been confirmed by the board of penitentiary commissioners; and that no successor to said Chavez as superintendent had been employed by said penitentiary board. That he had been always ready to audit and allow the salary of

1 Motion for rehearing pending.

the assistant superintendent to the person entitled thereto, i. e. E. H. Bergmann, but he had never applied for it, but that he did claim the salary of the superintendent, which was also claimed by said J. Francisco Chavez. That he had, in his report to the thirtieth legislative assembly, recited these facts, and had asked for the consideration of the same by that body, but that it failed to act upon it. That while Bergmann was assistant superintendent, regularly employed and appointed as such, he could only draw the salary provided for that position; and while Barber (the defendant in error) was appointed as and employed in the office of foreman of the brick yard and yard master, he could only draw the pay to which that position entitled him, i. e. $720 per annum, instead of the pay of the assistant superintendent. $1,500 per annum, although he had actually performed the duties of that position as well as those of yard master, as under the law he was required to perform any duties which might be imposed upon him, without any additional compensation. Upon the hearing there were no contested questions of fact, the only ques tion being as to the duty of the auditor, under the facts stated in the petition, answer, and stipulation, to draw the warrant for the balance of the salary of the relator for the time he was acting as assistant superintendent.

It is claimed by the relator that under section 35, c. 76, p. 177, of the Session Laws of 1889, the board of penitentiary commissioners was the sole and exclusive auditor of all claims, and, their certificate being given to the claimant, it was the absolute duty of the auditor to draw his warrant for the amount, and that he had no discretion in the matter, and this view was the one taken by the court below, and its decision was rendered upon that point. In closing a somewhat lengthy opinion in the case the court says: "The auditor has the right to know that the certificate is legal and proper; he can inquire to see if he has paid the claim before, but beyond that he cannot go. The action of the board is a finality as far as he is concerned. If they act illegally, that is none of his business, for he is protected by the certificate. The courts were instituted to correct the wrongdoings of legal boards, not the auditor. It is on this ruling of the court that the plaintiff in error. by writ of error, brings the case for review to this court. A question arises whether the record here presents the case in such a manner that the court can pass upon it. The only proceedings in the case properly brought before us by the record are the writ, with certain exhibits, the return of the respondent thereto, and the judgment of the court granting the writ. Mandamus is a civil action, and, with the exceptions of the pleadings, is tried and proceeded with in the same manner as other civil actions. The writ and the return constitute all the pleadings which shall be allowed. The conduct of the trial differs in no respect from the trial of any other civil action. The matters charged in the writ, which are denied by the respondent, must be proven by the relator, and matters in avoidance alleged in the return must be proven by the respondent. If the writ does not state sufficient grounds to authorize the court to issue it, the respondent might demur thereto, and thus raise a question of law, which, if overruled by the court, would be such a final judg ment as would authorize him to appeal if he desired to do so. In this manner, plaintiff in error here might have raised the question which in this record he attempts to present to

the court. In all cases where matters in issue of law and fact are submitted to the court the parties must separate the matters of law from those of fact, and have the opinion of the court upon the points of law. Then it can be seen on what ground the court decided the case. But in this case, if there be any error at all, we cannot consider it, because it was not presented to the court below. The statute provides that the supreme court may consider only such questions as were raised below, and passed upon by the court; so, if error has been committed, there might be an opportunity to correct it. There were no exceptions taken to any ruling of the court below, no demurrer filed to any of the pleadings, nor was there any motion made for a new trial. We do not think the record before us properly presents any question for our consideration which would justify this court in reversing the judgment of the court below, which judgment is therefore ordered affirmed.

1. Where plaintiff in ejectment claims under deeds which cover a tract of which the land in dispute is a part, but which except and reserve from the grant a certain number of acres, not described, which had been conveyed by a former owner to other persons, the burden is on plaintiff to show that the land in dispute is not a part of the land so excepted.

2. Where evidence offered for a certain purpose is inadmissible for that purpose, its rejection is not rendered erroneous by the fact that it is admissible for another purpose, not alluded to by the party offering it.

3. Under the civil law, as existing in the territory of New Mexico in 1868, a verbal contract for the sale of real estate, accompanied by delivery of possession, could be enforced. Freeman, J., dissenting.

Error to district court, San Miguel county; James O'Brien, Judge.

Ejectment by the Maxwell Land-Grant Company against John B. Dawson. Judg ment for defendant, and plaintiff brings error. Affirmed.

Frank Springer, for plaintiff in error. A. A. Jones, for defendant in error.

LEE, J. This is an action of ejectment brought to recover possession of certain lands within the Beaubien and Miranda, or Maxwell, land grant. The plaintiff declares for the lands described in a United States patent to Beaubien and Miranda, covering 1,714,000 acres. Defendant disclaims as to all the land thus described, except a certain

tract described in his first additional plea, as to which he pleads not guilty, and in his third and fourth pleas makes defense as to this tract under the statute of limitations. Plaintiff, by its replication to these pleas, joins issue, except as to a certain part of the land claimed by defendant, which part it admits to be the property of the defendant. The real controversy, therefore, is as to the ownership of the land lying outside of the boundaries of a larger tract admitted to belong to defendant, and within the boundaries of a larger tract claimed by to defendant. That is say, defendant's ownership of a certain tract is admitted. He claims, not only this, but a larger one surrounding it, which is disputed. The contention is over the land embraced in the excess. The plaintiff introduced in evidence the patent of the United States for its grant, and deeds showing a chain of title from Lucien B. Maxwell, who, it is admitted, was the former owner of the grant, down to the plaintiff, the Maxwell Land-Grant Company, which deeds all contain the following reservation: "Excepting and reserving from said grant and estate such lands, not exceeding, in the aggregate, fifteen thousand acres, as had been conveyed by the said Lucien B. Maxwell prior to the 26th day of May, 1869." This chain of title from the original grantees named in the patent down to the plaintiff in this suit, with proof of heirship of some of the grantees, was all the evidence offered on the part of the plaintiff in support of its title to the lands in question; and with this, and some oral testimony tending to show that the land claimed by Dawson was a part of the land embraced in the patent of the Beaubien and Miranda grant, plaintiff rested its case. The defendant then asked the court to instruct the jury to return a verdict in his favor, on the ground that the plaintiff had failed to show that the land claimed by the defendant was not a part of the 15,000 acres exempted from the deeds in its chain of title as lands having been conveyed by Lucien B. Maxwell prior to May 26, 1869. The motion was overruled, but in the instructions given to the jury the court submitted the proposition as a question of fact. These instructions were as follows: "You are instructed that the patents, documents, deeds, and other papers introduced in evidence by the plaintiff are sufficient to vest the legal title to the whole of the land in controversy in the plaintiff, and to entitle the plaintiff to the possession of the whole of said land, unless you find from the evidence that the defendant has a legal right to the possession thereof, or some part thereof, either by virtue of the deed of conveyance from Lucien B. Maxwell and wife, or by adverse possession for a period of ten years or more prior to the commencement of this suit, or unless you find from the evidence that the plaintiff has failed to prove that the land in controversy, or some

portion thereof, is not the whole or a part of the fifteen thousand acres of land excepted in the conveyance from Frank R. Sherwin and others to the Maxwell Land-Grant Company, under which plaintiff claims title to said land." "You are instructed that the burden of proof is on the plaintiff to show that it has the legal title to, and the right of possession of, all the lands in controversy; and unless you find from the evidence that the lands in controversy were included in, and not excepted from, the deeds of conveyance under which plaintiff claims title, plaintiff cannot recover in this action." The plaintiff excepted to these instructions, and assigns the giving them as error.

It is elementary that in actions of ejectment the plaintiff must recover on the strength of his own title, and show that he had title to the particular land in dispute. An exception to a grant withdraws from the operation of the conveyance some part or parcel of the thing granted, which, but for the exception, would have passed to the grantee under the general description. The part excepted is already in existence, and remains in the grantor. It is clear that the 15,000 acres thus excepted did not pass to the grantee, and there was no evidence offered to show what particular part of the whole grant the reserved part comprised. There is no presumption of law that the land claimed by the defendant was not a part of the land reserved in the plaintiff's deeds constituting its claim of title. It was there fore a part of the plaintiff's case, and the burden was on it, to show that the land claimed by the defendant was not a part of the 15,000 acres which had been conveyed by the said Lucien B. Maxwell prior to the 26th day of May, 1869. Therefore, if the plaintiff failed to establish by competent evidence that the land in controversy was not a part of the 15,000 acres reserved by the deed from Maxwell, there was certainly no error in the instructions complained of.

It is contended, however, on the part of the plaintiff, that the court erred in excluding deeds of Lucien B. Maxwell and wife to Miller, Maulding, and Curtis for lands on the Vermejo, which were offered in evidence by the plaintiff, which it was claimed would have had a tendency to show what lands had been conveyed by Maxwell on the Vermejo prior to May 26, 1869. If these deeds had been offered in evidence by the plaintiff as a part of its case in chief for that purpose, it would have been clearly error on the part of the court to have excluded them; but they were offered in rebuttal, and for a different purpose. The evidence must be proper for the specific purpose for which it is offered. The court has a right to know what it is designed to prove, in order to determine its relevancy and materiality. "Where, therefore, evidence is rejected which is tendered for one purpose, and it is inadmissible for that purpose, but is admissible in another

view of the case, not alluded to on the trial, the court will not grant a new trial as for an improper rejection of evidence." Grah. & W. New Trials, p. 669. But, even if this could be construed as error on the part of the court, is it not overcome by an admission which appears in the record of the case, as follows? "It is admitted and agreed by counsel that the deeds from Lucien B. Maxwell and wife to Maulding, Miller, and Curtis, of which counsel in error offered to introduce certified copies in evidence at the trial in the court below, were duly executed, acknowledged, and recorded; that said deeds were both dated January 7, 1869, and purported to convey certain lands lying on both sides of the Vermejo river below the lands in controversy; and that the lands so conveyed are described in said deeds as all the land or ground suitable for farming or tillable or cultivating purposes in the valley or drainage of the Vermejo river, with certain boundaries, which boundaries are described by reference to natural objects, such as rocks and trees; and that no area or acreage is mentioned therein, nor is there anything in the deeds themselves whereby, without other evidence, the amount of the land there by conveyed could be determined." The plaintiff, by virtue of this admission, so far as the determination of the amount of the land conveyed is concerned, has the same benefit as if the deeds had been introduced in evidence, and thereby overcomes the effect of the error, if such action was error.

It is assigned by the plaintiff as error that the court erred in admitting the testimony of J. B. Dawson as to oral statements of Maulding and Curtis touching their purchase from Maxwell. The defendant introduced evidence which tended to show that in the year 1868 he entered upon the land in controversy under an agreement of purchase with one Joel Curtis, Taylor Maulding, and Dick Miller, who were at that time in possession of the land under a contract of purchase with Lucien B. Maxwell and wife, the then owners of the Beaubien and Miranda grant. The tract purchased by Miller, Maulding, and Curtis, and of which they were in possession, extended for six miles along the valley of the Vermejo river, including its drainage. Dawson's contract with them was for the upper portion of this tract, it being the land in controversy in this case, agreeing to pay therefor $3,700. That he took possession under the agree ment, and, on the line fixed by them as his lower boundary, he erected a stone fence across the valley. That he has been in possession and actual occupation of the land, under a claim of ownership, since his entry, in 1868, up to the present time. The plaintiff, on rebuttal, introduced a deed from Lucien B. Maxwell and wife to the defendant, executed on the 7th day of January, 1869, which it is admitted conveys to the defendant at least a portion of the land in contro

versy. This deed described the land conveyed as follows: All the land or ground now suitable for farming or cultivating purposes in the valley or drainage of the Vermejo river, county of Mora, territory of New Mexico, within the following boundaries, to wit: Beginning at a certain dam at the head of a certain ditch at the right- | hand point of rocks; from thence running down on the north side of said river to a certain other pile of rocks, on a knoll or elevation, with some bushes near thereto; thence running very near southward across said river to a pinon tree to the right of a ridge near a wash, which tree is marked with the letter 'L;' thence running up said river on the south side to the place of beginning; containing about acres, more or less. It is as to the ambiguity of the words of this deed, used in describing the land therein conveyed, that the principal contention in the case arises. It is shown by the evidence that the dam referred to in the description was one that had been put in by Dawson on the upper part of his land for the purpose of irrigation. The tree marked "L" was to indicate the line between Curtis, Miller, Maulding, and Dawson. This deed from Maxwell and wife to Dawson, together with the admission as to the deeds of Maxwell and wife to Miller, Maulding, and Curtis, was the only evidence introduced on the part of the plaintiff to dispute the testimony of Dawson that he had purchased from Miller, Maulding, and Curtis under their contract with Maxwell for the whole tract on the Vermejo river, and not from Maxwell himself, and that the deed made by Maxwell and wife to him was executed for the purpose of carrying out their contract with Miller, Maulding, and Curtis. The question as to whether Dawson purchased from Miller, Maulding, and Curtis under their contract with Maxwell, or whether the purchase was made by him from Maxwell and wife, becomes material, from the fact that a portion of the drainage of the Vermejo river claimed by Dawson empties into the river below the line of the land in controversy, but within the lines of the land purchased by Miller, Maulding, and Curtis from Maxwell; and whether their statements in this connection, as testified to by Dawson, were or were not properly admitted in evidence, becomes immaterial, from the fact that defendant, Dawson, further testified that he had conversations with Maxwell, the party from whom they claimed to have purchased, and that Maxwell pointed out the land, and also told him what amount of land he would receive under his agreement with Maulding, Miller, and Curtis, who were then in possession, and so recognized by Maxwell under his sale to them. That was all that was required to give legal effect to a contract at that time. The civil law, as it existed at the time of the acquisition of the v.34P.no.2-13

territory, was then in full force; and, the statute of frauds being unknown to the civil law, a verbal contract for real estate, where possession was delivered, could have been enforced.

Dawson testified that he did not pay the money for the purchase to Maxwell, but paid the $3,700 to Curtis, one of the parties with whom he contracted, and that Curtis paid the money to Maxwell under the Miller, Maulding, and Curtis contract, and that Maxwell and wife sent him (Dawson) the deed introduced by the plaintiff. The defendant contends that this deed was executed by Maxwell in compliance with his contract with Miller, Maulding, and Curtis, and that his and their deeds from Maxwell cover all the lands embraced in the contract between Maxwell and Miller, Maulding, and Curtis, for the six miles of land along the Vermejo river, including its drainage. This contention is strongly supported by the fact that all of the deeds were executed at the same time, and the same language used in the description of the property conveyed, as being "all the land or ground now suitable for farming or tillable or cultivating purposes in the valley or drainage of the Vermejo river," etc. In construing the language in these deeds so as to ascertain the intention of the parties, we must consider the law applicable to water rights along streams in force at the time of their execution. The common-law right of riparian ownership was not in force in this territory. The occupant of land in each valley or watershed capable of irrigation from a stream flowing through it had, under the law, a vested interest in the common use of the water for irrigation and like purposes to which the waters were dedicated. The word "drainage" is defined to mean that district of country that drains into a river or stream, as the drainage of the valley of the river Thames, and has the same legal significance as the term "watershed," and it appears that the parties so understood the word "drainage" at the time they contracted. Dawson spoke to Maxwell in regard to where the drainage would place the line around the tract of land that he was to get, and therefore he must be understood to have known that Dawson was claiming such a line as the drainage would give him, and if such were the case that understanding or agreement would fix the boundary line of the deed, and it would be immaterial where a survey would establish the line. It would be perfectly proper for parties owning adjoining tracts of land to settle by agreement where the division line should be, and the deeds which are ambiguous and uncertain will be construed in accordance with the intention of the parties. We have considered the real matter in contention in this case, as we understand it. The case was fully and comprehensively presented to the jury by the court in its in

structions, covering every theory upon which it could be decided under the issues. The verdict returned was a general verdict for the defendant. There were no special findings asked, and there is nothing in the record to indicate upon what particular grounds the jury based their verdict. Taking into consideration the issues, the evidence, and the instructions of the court, we think the jury were warranted in returning the verdict they did; and, not finding any error in the rulings of the court which we think would justify a reversal of the case, the judgment below will be affirmed, and it is accordingly so ordered.

SEEDS and FALL, JJ., concur.

FREEMAN, J., (dissenting.) I find myself unable to agree to the conclusions reached by a majority of the court. I am free to confess that in my opinion the ends of substantial justice have probably been reached. I think it more than probable that, as a matter of equity and good conscience, the defendant in error is entitled to retain possession of the land which he claims. It is a question of the right of a private citizen to retain the use and occupation of 20,000 acres of land carved out of a grant of 2,700,000 acres. But the conclusions of law reached by a majority of the court are calculated, in my opinion, to disturb landmarks of title, and menace, to a dangerous extent, the well-established rules governing title to real estate. The defendant went into possession of the premises under a contract of sale from the plaintiff's grantor. He accepted a deed, and up to the bringing of the suit claimed to hold under that deed. The first disclaimer which this record shows to have been made (and therefore the first declaration of adverse ownership outside of the boundaries as contained in his deed) is set up in his defense to this suit. The description of the land, as contained in the deed, is as follows: "All the land or ground now suitable for farming or cultivating purposes in the valley or drainage of the Vermejo river, county of Mora, territory of New Mexico, within the following boundaries, to wit: Beginning at a certain dam at the head of a certain ditch at the right-hand point of rocks; from thence running down on the north side of said river to a certain other pile of rocks on a knoll or elevation with some bushes near thereto; thence running very near southward across said river to a pinon tree to the right of a ridge near a wash, which tree is marked with the letter 'L; thence running up said river on the south side to the place of beginning,"-while the land claimed by him now in his plea is described as follows: "Commencing at the dam on said river, at the upper end of John B. Dawson's farm; thence running to a high point of rocks on the north side of the Vermejo canon; thence following along the top of the divide west of Rail canon to the head

of Saltpetre canon, to a point on a line with said John B. Dawson's rock fence; thence following said rock fence across the Vermejo to the top of the divide between the Vermejo and Van Bremmer canon; thence following the top of said divide to the head of Coal canon; and thence along the top of the divide east of Coal canon to a point on said divide nearest the place of beginning; thence to the place of beginning." While the boundaries set out in the deed are vague and uncertain, it is not pretended that they include all, or nearly all, the land included in the boundaries set out in the plea. The deed embraces about 1,000 acres, while the plea claims 20,000. It is to be observed that the defendant now disclaims title under the deed, but relies wholly on adverse possession under the statute of limitation. The deed was introduced over his objection by the plaintiff. The defendant is allowed to state that plaintiff's grantor, Maxwell, pointed out to him (the defendant) the boundaries, and that they were the same as are now set out in the plea. "The boundaries are what you read in that description there," is the language of the witness. And yet he admits that when the plaintiff's agent came to see him about his boundaries he exhibited to him the deed he received from Maxwell, and in another part of his testimony he admits that he fre quently claimed that under the deed from Maxwell he was entitled to the "drainage of the Vermejo between the dam and the stone fence." It seems perfectly clear to me that when the defendant bought the land, and went into possession, the tract conceded to him by the plaintiff in this suit was all that he understood he was buying. At the same time he understood that the possession of the land on each side of the stream gave him command of the water, and that this command virtually gave him control of the grazing privileges over the surrounding country, particularly within what is known as the "drainage" of the river. This was known as his "range." It was a part of the unwritten law of this territory at that time that ownership of the water commanded all that portion of the surrounding country contiguous thereto, and created an easement that was recognized by the legislature of this territory in the passage of the act approved February 15, 1889, which made it a misdemeanor to overstock a range. Defendant says that he talked with Maxwell about the extent of his possession, and that Maxwell pointed out to him his boundaries; that this was in June, 1868, six months before he received his deed from Maxwell, which was dated January 7, 1869; and that they were at that time at the stage station on the Vermejo, about four miles distant from the premises. Now, bearing in mind that this was the only time and occasion upon which Maxwell, the grantor, ever undertook to define the boundaries of the premises.-for he admits that Maxwell never came on the ground to point out the bound