lot which "runs down to the corner," and that the corner was visible when the grounds were laid out and the school house built. (The southeast corner of section 30 would necessarily be the northeast of 31, and the northwest of 32, being the corner in controversy.) This evidence as to the location of the lines of trees and the school house was received over defendant's objection that the same was incompetent and immaterial, and as calling for the opinion of the witness as to what other parties did.

This evidence may not have been of great value, and its force may have been afterwards 'modified by defendant's (Spawn's) testimony that he set his trees hurriedly, and without reference to the corner; but they were circumstances which, unexplained, tended to show the understanding of different parties in that vicinity as to the location of the corner. These were improvements of a permanent character, made by parties who would naturally be interested in locating them correctly; and, being located with reference to a visible mound, the fact would tend very directly to show whether they then regarded such mound as the mark of the government corner. It must be remembered that in this case the first search must be for the corner established by the government survey, for that is conclusive, if found; and at this point the primary inquiry was, did the mound, pit, and stake testified to by the witness indicate such corner? The witness says these marks were plainly visible when these improvements were located. We think the fact that defendant, Spawn, and others made and located these improvements with reference to these visible marks was fair evidence to go to the jury as to the impression which these marks made upon these various persons as they then observed them, and not as they now remember them. Of course, no boundary rights would be concluded by such facts, but we think they were circumstances which the jury might properly know, and which might fairly help them in solving the question whether the mound, pits, and stake testified to by the witness did or did not constitute the government corner. It was per

haps somewhat of the nature of traditionary evidence, often re

sorted to in the effort to establish ancient and obliterated land marks, and in this case tended, at least, to show that many years before, when these marks were more distinct and intelligible, they were recognized by the people living there, including the parties to the present controversy, as indicating the corner established by the government. Baker v. McArthur, 54 Mich. 139, 19 N. W. Rep. 923; Coy v. Miller, (Neb.) 47 N. W. Rep. 1046.

Cyrus Walts testified that he was formerly a surveyor, and had been locating government land 19 years; that in June, 1873, he ran the lines of section 29, and found the government corner of sections 29, 30, 31, and 32; that with reference to the roads the corner was right where they crossed each other; and his evidence as to the location of this corner, and the presence and appearance of the monuments indicating the same, tended to corroborate the testimony of the witness Arneson. The abstract says several other witnesses, without naming them, "testified, in relation to the corner claimed to by plaintiff, the same, in substance," as Arneson and Walts. It appearing from evidence introduced by plaintiff that he had leased the said N. W. of section 32 for a definite term, and at the time of the alleged wrongful acts the tenant in said lease was and still is entitled to, and was and is in the actual possession of, said premises, defendant moved to strike out all the evidence introduced by plaintiff, and to render judgment in favor of defendant, for the reason that the premises upon which the trespass is alleged to have been committed were then and still are in possession of a tenant under a lease. The refusal of this motion by the court is assigned as error, and will be considered later in this opinion.

The defendant introduced as a witness D. C. Rice, who testified that in November, 1888, he was county surveyor of Minnehaha county, and made the survey of said sections 30, 29, 32, and 31, at the request of several parties, naming them; and then offered in evidence "a certified copy of the report of D. C. Rice, county surveyor," which was objected to by plaintiff as incompetent, immaterial, and irrelevant, and not properly cer

tified to " This objection was sustained, and defendant excepted. The paper thus offered in evidence is not given to us in the record, nor have we any means of knowing its contents. We do not know the substance or form of the certificate, nor how it was executed. Until error is affirmatively shown, the presumption is in favor of the ruling of the court "As the assignments of error cannot be considered without having before us the contents of the instruments so received, or so offered and rejected, and they are not here, there is nothing to sustain such assignments of error, and the presumption in favor of regularity must prevail." Blake v. Lee, (Minn.) 38 N. W. Rep. 487.

The same disposition must be made of the error assigned upon the refusal of the trial court to admit a book called "Field Notes," and presented by defendant. One of plaintiff's objections to their admissibility was that they were not properly certified to. Defendant then introduced "certificate authenticating these records," thus presenting the question of the sufficiency of the certificate. There is nothing in the abstract to inform this court of the contents of such certificate, nor by whom or how it was executed. A knowledge of these facts is indispensable in passing upon the question of its sufficiency. Under these circumstances it is not possible for this court to say whether these records were so authenticated as to entitle them to be admitted or not. Emerick v. Sloan, 18 Iowa 139; Craft v. Dalles City, (Or.) 27 Pac. Rep. 163. We think, under our practice, the rule should be that records, documents, or other writings, an understanding of which is essential to the appellate court in coming to a decision on the errors alleged, should be printed in the abstract, or their contents, or the facts upon which their competency depends, so particularly described as to give this court all the information which the trial court had; for only then can this court safely or properly express an opinion as to whether the trial court had erred or not. As announced by this court in Noyes v. Lane, 48 N. W. Rep. 322, the printed abstract, as agreed to by the parties or settled by the court in case of dispute, constitutes the record upon which a case is heard in this court; and appealing parties should see

to it that it contains everything necessary for the appellate court to know or consider in investigating and passing upon every question sought to be reviewed.

The report of Surveyor Rice having been excluded by the court, he (Rice) testified as "a witness for defendant," as to how he made the survey, who assisted him, what rules he followed as to courses and measurements, and where—not being able to find the government corner-he established the corner in dispute. At the close of the evidence defendant asked the court to instruct the jury "that the survey of the county surveyor is presumptively correct," and the refusal of the court to give this instruction is assigned as error. This proposition is, without question, the general law of the state, for it is made so by statute. Section 689, Comp. Laws. Whether the refusal of the court to give it to the jury as the law of this case was error or not depends upon whether there was any evidence in the case to which it could apply. It is not error for the trial court to withhold from the jury confessedly good law, where the same is outside of and not involved in the determination of the questions before it on the evidence in the case. The statute (Section 689 et seq.) prescribes with much detail under what circumstances and how the county surveyors shall make an official survey, what his report of such survey shall contain, and what shall be done with it after it is so made, "and said record shall be competent evidence in all courts of the facts therein stated." Section 690. When Section 689 says, "and his surveys shall be held as presumptively correct," we think it means his surveys made, authenticated, and proved as provided by the statute. When Rice testified as "a witness for defendant," his evidence did not take the place of his official report, nor did it carry the same presumption. It was simply the evidence of a witness. Its probative value was not fixed by the law, as in the case of his official return, but went to the jury like any other evidence. Suppose, instead of Rice, Van Antwerp, his assistant, or even one of the chainmen, had testified to precisely the same facts, could it be held that the official survey was so proved as to entitle it to the favorable pre

sumption of the statute? We think such a conclusion would be unsafe, and not within the contemplation of the law. The of ficial report of the county surveyor not being in evidence, nor his survey proved in the manner provided by statute, we do not think defendant was in position to claim the benefit of the instruction asked for, and there was no error in the refusal of the court to give it. Beeman v. Black, 49 Mich. 598, 14 N. W. Rep. 560. Tested by the same rule, instructions marked "2" and "3" were properly refused. If given they could not have helped the jury, for they would have found no evidence in the case to which such instructions could apply.

Error is also assigned on the refusal of the court to give instructions 4, 5, and 6, as follows: (4) Recognized government corners, standing in the same township, should be considered, and section lines tested by both east and west distances and north and sonth distances, as given by the field notes of the government surveyor. (5) The general rule, that known monuments are to govern, is subject to exceptions, as where an adherence to the rule would be plainly absurd to its results. (6) The rule that, in the construction of a deed, courses, distances, and quantities must yield to natural or artificial monuments called for by the grant, is not inflexible. It applies with less force to artificial than to natural monuments, and, where there is anything in the description showing that the courses and distances are right, they will prevail." We presume these instructions express correct rules of law for locating or establishing confessedly lost corners and boundary lines. In this case the primary issue was whether the government corner determining the boundary line between plaintiff and defendant was lost or not. The instruction as asked assumed the affirmative against the plaintiff. These instructions, admitting them to be good law in the abstract, could only have been properly given in this case upon the condition that the jury should first find that the original corner in question was lost, and this condition should have accompanied the instructions; for, as we will notice further on, if the corner established by the government surveyors, and in reference to which the patent was issued, is found and