
    [No. 11149.
    Department Two.
    June 9, 1888.]
    CAROLINE CARPENTER, Appellant, v. ROBERT EWING, Respondent.
    Instructions — Application to Evidence — Appeal — Objection foe First Time. — If a case is tried upon the theory that certain evidence is admissible under the pleadings, and such evidence is offered and received without objection, it is the duty of the court to instruct the jury upon the law of the case as presented by the evidence, and the losing party cannot raise an objection to such evidence, or to the instructions applicable thereto, upon appeal for the first time.
    Id.—Peesumption as to Instructions. — When none of the evidence appears in the record, it will be presumed to have justified the instructions, and the judgment will not be disturbed on account of alleged error in the instructions, unless it appears that they would have been erroneous under every conceivable state of facts.
    Appeal from the judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
    The facts are stated in the opinion.
    
      George N. Williams, for Appellant.
    
      Lloyd Sc Wood, for Respondent.
   Belcher, C. C.

This is an action of ejectment to recover a strip of land eight inches wide and twenty-four feet long. The complaint contains the ordinary allegations of ownership and ouster, and is not verified. The answer contains a general denial, with allegations of actual and bona fide possession by defendant and his grantors for more than five years before the commencement of the action, and the plea of the statute of limitations.

The case was tried before a jury, and a verdict returned for defendant, on which judgment was entered. The plaintiff appealed from the judgment, and has brought up in the transcript the pleadings, judgment, and nine instructions given to the jury at the request of the. defendant, but none of the testimony on which the instructions were based.

The appellant insists—and this is the only point made—that the first five instructions, though admitted to be sound as abstract propositions of law, were misleading and erroneous, because not applicable to the issues raised under the plea of the statute of limitations.

The instructions complained of relate to an agreed line between contiguous owners of real property, and an acquiescence therein for the period of five years.

Whether evidence as to an agreed line and long acquiescence, if objected to, was admissible under the pleadings or not, it is not necessary to determine. If the case was-tried upon the theory that such evidence was admissible, and it was offered and received without objection, it became the duty of the court to instruct the jury upon the law of the case as presented, and the losing party cannot be permitted here for the first time to raise an objection on this ground. (Boyce v. California Stage Company, 25 Cal. 460; Bell v. Knowles, 45 Cal. 198; Yik Hon v. Spring Valley Water Works, 65 Cal. 619.)

None of the evidence being brought up in the record, and there being nothing to show its purport or tendency, it will be presumed that it was such as to justify the instructions, and that they were properly given. The settled rule is, that where the record contains no part of the evidence, the judgment will not be disturbed on account of instructions alleged to be erroneous, unless it appears that such instructions would have been erroneous under every conceivable state of facts. (People v. Dick, 34 Cal. 663; Baldwin v. Bornheimer, 48 Cal. 433; People v. Smith, 57 Cal. 130; People v. Gilbert, 60 Cal. 108.)

It is not pretended that the instructions complained of here would be erroneous under every conceivable state of facts, and the judgment should therefore be affirmed,

Hayne, C., and Foote, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.  