This case has been here twice before, and will be found reported in 27 Cal. 87, and 31 Cal. 461. The precise questions not determined on the former appeals were nearly all disposed of in the similar case of Keeran v. Allen, 33 Cal. 542, and it is unnecessary to discuss them further.

The patent from the United States to the defendant was properly admitted. The United States Government is the source of title in both parties. Whether the plaintiff or the defendant acquired the title, depends upon the question whether the lands were swamp and overflowed within the meaning of the Act of Congress of 1850, so often cited, or whether the plaintiff acquired the lands under any of the subsequent Acts referred to by him. The case of Keeran v. Allen disposes of the points made under the Acts of 1855 and 1857.

Conceding the first section of the Act of July 23d, 1866, “to quiet land titles in California,” to apply at all to lands claimed under grants from the State as swamp and overflowed, the confirmation provided for does not extend to “lands as to which an adverse pre-emption, homestead or other right has, at the date of the passage of this Act, been acquired by any settler under the laws of the United States.” It does not appear in the statement or record whether the defendant did, or did not, before or after the introduction of his patent, in connection with it, introduce testimony to show that he had acquired a “pre-emption, homestead, or other *585light” before the passage of the Act, which the patent perfected, into a title. The patent was one step in the defendant’s proof, and, as such, admissible. There was no objection to it on the specific ground that he had not made any preliminary proof. (Kiler v. Kimbal, 10 Cal. 267; 16 Cal. 248; People v. Banvard, 27 Cal. 474.) Uor does there appear to have been any subsequent objection that the proof had not been supplied. It was not one of the grounds of motion for new trial that the evidence was insufficient in this respect to sustain the verdict, and for this reason the statement very properly omits to show whether the defendant introduced any evidenee on the point or not. If the appellant relied upon any such want of evidence on the part of defendant to sustain his verdict or to connect a right acquired under the laws of the United States prior to the passage of the Act of 1866, with the patent subsequently issued, he should have made this defect in the evidence appear in his statement, and have specified it as one of the grounds of his motion. The statement very properly only purports to contain the evidence to illustrate the grounds for new trial specified. We must decide the case as it appears in the record, rather than as stated in the briefs; and upon the record it does not appear, that the defendant failed to show a right acquired under the laws of the United States prior to the passage of the Act in question. We cannot presume error; it must be affirmatively shown.

The real contest would seem to have been as to whether the land was swamp or overflowed, within the meaning of the Act of 1850. Upon this point there was such a substantial conflict in the testimony as to bring it within the rule so often announced upon the subject, and we cannot disturb the verdict on the weight of the evidence.

The record does not disclose any exception taken to the ruling of the Court, admitting the testimony of Weaman, Lewis and Thornton. (McCartney v. Fitz Henry, 16 Cal. *586185, 186; Turner v. Tuolumne Water Company, 25 Cal. 404.) The instruction complained of is substantially the same as that held to be proper in Keeran v. Allen.

The judgment must be affirmed, and it is so ordered.