Heydenfeldt, J., concurred.

The record in this cause discloses the fact, that there was a dispute between Gaskins and Larue, as to the right of possession to a lot in the town of San Antonio; Gaskins claiming title to the lot, as a part of a pre-emption claim to land located by him. But he does not prove an enclosure of, or any marked and visible boundaries embracing the lot in dispute. Larue, the plaintiff, having erected a house upon the lot, could not be dispossessed in the manner sought by the defendant.

It does not appear that the exclusion of the record of the defendant’s claim in evidence was injurious to him upon the trial, since, if it was admitted, it would not, in itself, be evidence of a right of possession.

The motion for a nonsuit was properly overruled, as it was the province of the jury to pass upon the fact of possession, as well as to esti" mate the damages suffered by the commission of a wrong.

We can perceive no error in the proceedings below. It is, therefore, ordered that the judgment be affirmed with costs.