Lee, J.
ejectmbnt: title: grimt”:urden of proof. 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 one million, seven hundred and fourteen thousand acres. Defendant disclaims as to allfthe land described, except 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, there-f°re? as to the ownership of the land lying outside of the boundaries of a tract admitted to belong to defendant, and within the boundaries of a larger tract claimed by defendant. That is to 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 twenty-sixth 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, it 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 fifteen thousand acres exempted from the deeds in its chain of title as lands having been conveyed by Lucien B. Maxwell prior to May 26, 1869. This 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 B. 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 can not 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 fifteen thousand 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 therefore 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 fifteen thousand acres which had been conveyed by the said Lucien B. Maxwell prior to the twenty-sixth 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 fifteen thousand acres reserved by the deed from Maxwell, there was certainly no error in the instructions complained of.
Admissibility of posefnot men-ur' tionea on tnai. 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 &r tóndfl OU the Vermejo, Which W6r6 offered in evidence by the plaintiff, which ^g ciaimec¡_ 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.
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Lee, J.
ejectmbnt: title: grimt”:urden of proof. 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 one million, seven hundred and fourteen thousand acres. Defendant disclaims as to allfthe land described, except 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, there-f°re? as to the ownership of the land lying outside of the boundaries of a tract admitted to belong to defendant, and within the boundaries of a larger tract claimed by defendant. That is to 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 twenty-sixth 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, it 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 fifteen thousand acres exempted from the deeds in its chain of title as lands having been conveyed by Lucien B. Maxwell prior to May 26, 1869. This 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 B. 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 can not 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 fifteen thousand 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 therefore 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 fifteen thousand acres which had been conveyed by the said Lucien B. Maxwell prior to the twenty-sixth 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 fifteen thousand acres reserved by the deed from Maxwell, there was certainly no error in the instructions complained of.
Admissibility of posefnot men-ur' tionea on tnai. 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 &r tóndfl OU the Vermejo, Which W6r6 offered in evidence by the plaintiff, which ^g ciaimec¡_ 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 as 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 thereby 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 agreement, 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 seventh day of January, 1869, which it is admitted conveys-to the defendant at least a portion of the land in controversy. 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 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 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 con - veyed, as being “all the land or ground now suitable for farming or tillable or cultivating purposes in the valley or drainage of the Yermejo 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 instructions, 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 according ly so ordered.
Seeds and Fall, JJ., concur.