The Court instructed the jury as follows: “A party who at the time of his entry upon public lands was the owner of three hundred and twenty acres of land in any State or Territory of the United States, could not preempt public land.”

*199The plaintiff excepted to the giving of this instruction, and now assigns the giving of it as error.

As disclosed in the record, there was nothing whatever in the case in regard to the right of either party to preempt under the laws of the United States. The plaintiff rested his right to recover wholly upon the ground of the prior actual possession of Yorba, his grantor, and upon certain proceedings taken to purchase the land of the State of California. The Court properly excluded the paper, offered to show a selection of the land by the State, and thus left in the case only the question of prior possession. Upon that question testimony was introduced by both parties; the plaintiff’s testimony tended to prove that for about fifteen years prior to the entry of the defendants’ grantors Yorba had held the actual possession of a portion of the demanded premises, and that his possession was evidenced by substantial inclosure and annual cultivation; that he had used the land outside of his inclosure for pasturing stock, and had certain improvements thereon, such as irrigating ditches, hog pen, etc.

The defendants’ testimony tended to prove that Yorba’s pretended in closure was only of about twenty acres; that his fence was insufficient to turn stock, and that the larger part of it was wholly gone prior to the entry of their grantors in December, 1866.

It also appeared that during the time Yorba was claimed to have had possession of the land in controversy he became the owner of more than three hundred and twenty acres of land which he still held, though, according to his testimony, he had transferred the title to his wife.

It is insisted by counsel that in view of the testimony the jury ought to have found for the plaintiff, and that the instruction was calculated to confuse and mislead them.

We think it clear, if the jury had found for the plaintiff »for at least so much of the demanded premises as had been *200"inclosed and cultivated, the verdict would not have been set aside, on the ground that it was unsupported by the evidence. (Polack v. McGrath, 32 Cal. 15.)

We are also of the opinion that the jury may have been misled by the instruction. They had a right to suppose that no instruction would be asked and given upon abstract questions having no relation to the case. Moreover the word “preempt” is sometimes used to express the acquisition of the title or possession of public lands by other methods than by purchase from the United States. In this case one of the briefs speaks of the book in which possessory claims taken under the Act of April 20th, 1852, are recorded as the “ Preemption Book.”

But if the Court meant to tell the jury that one who owned three hundred and twenty acres of land could not, for that reason, acquire and hold the actual possession of other land, then the instruction was manifestly erroneous.

On the whole we think the judgment should be reversed and the case remanded; and it is so ordered.