
    August Herford vs. Anton Schulte.
    November 7, 1887.
    Evidence held insufficient to sustain a finding of fact.
    Appeal by defendant from a judgment of the municipal court of Duluth, where the action was tried without a jury.
    
      D’Autremont é Gheeseman, for appellant.
    
      Edson é Warner, for respondent.
   Gtlfillan, C. J.

Action for taking and converting four tons of hay, which the plaintiff had cut and placed in his barn, from which it was taken by defendant. Each party claims that the hay was cut on his land, and therefore the hay was his. There was no question of title to real estate in the case. At the opening of the trial it was mutually admitted that plaintiff owned one tract of land, and the defendant another and adjoining tract. The only question in the case was, on which tract was the hay cut ?

The testimony of plaintiff, that he cut it in the immediate vicinity of and surrounding his barn; and that of the surveyor, that he had made a survey to ascertain the line dividing the two tracts, and that the land surrounding the barn upon which he saw hay had been cut was part of defendant’s tract, — shows clearly that the hay was cut on defendant’s land, and consequently belonged to him. Lindsay v. Winona & St. Peter R. Co., 29 Minn. 411, (13 N. W. Rep. 191.) The general statement of plaintiff that the barn stood on his own land, without stating anything to show what lqd him to that conclusion, can hardly be regarded as of any weight against the testimony of the surveyor showing where the line was.

Judgment reversed, and a new trial ordered.  