after stating the facts, delivered the opinion of the court.
1. It is first insisted that, the demurrer to the complaint should have been sustained, because the.land alleged to have *285been damaged by tbe acts of tbe defendant is not sufficiently described. The allegation is “that in the year 1897 the plaintiff, together with other lands, leased from Jacob Newman, the owner in fee of the S. B. *4” etc., “for the term of five years.” etc.; and it is argued that this is simply an averment that Newman was the owner in fee of the land described, and not that plaintiff leased it from him. But when this allegation is construed in reference to and in connection with the other averments of the complaint, it is apparent that the use of the preposition “of” in the description was a mere clerical error. The property is repeatedly referred to in the complaint as “said land,” “the land hereinbefore described and leased by plaintiff,” “the land leased and possessed by plaintiff as herein-before alleged,” and “land leased in 1897, as hereinbefore alleged;” thus clearly indicating an intention on the part of the pleader to aver that plaintiff was in possession of the forty acres particularly described, as lessee thereof. The purport of the entire complaint is that by virtue of a lease for the term of five years from Newman, the owner in fee of the land dejscribed, plaintiff occupied and made an effort to use and cultivate it for raising grain during the years 1898,1899, 1900, and 1901, but was prevented from successfully doing so by the water of Ladd Creek flowing back upon and overflowing the same because of a dam erected and maintained by the defendant. This is a sufficient statement of a cause of action, especially after answer and judgment.
2. Objection is also made to the allegation of damages for the year 1901, a part of which must necessarily have accrued after the commencement of the suit, and to the item of damages for plowing and preparing the ground for cultivation in 1898. But neither of these averments rendered the complaint vulnerable to a general demurrer, and besides there is nothing in the record indicating that either was considered as a factor in estimating the damages or arriving at the verdict. If the allegations were improper, the remedy was by motion to strike out, and not by demurrer.
3. Williamson, who farmed the defendant’s land in the year *2861892, and Cotner, who farmed it in 1893 and 1894, were called as witnesses for the defendant, who offered to show by them that they each maintained a dam in and across the slough or stream on defendant’s land at the same place where the dam complained of by the plaintiff is situated, and that the dams so maintained by them did not cause the water to flow back and upon the land now occupied by the plaintiff. The refusal of the court to permit this testimony is assigned as error. The offer to prove does not show that the dams maintained by Williamson and Cotner were of the same kind or height as the one complained of, nor that they were in the stream at flood time. It therefore did not appear that the general conditions were the same as in the case at bar; hence there was no error in refusing to admit the testimony.
4. An assignment of error is also predicated on an instruction to the jury that if defendant obstructed the channel of the stream on his land, as a result of which the water backed up and on the plaintiff’s land, he would be liable for at least nominal damages, whether actual damages resulted or not. The contention is that the defendant had a right to construct and maintain a dam on his own land, and that, if by reason thereof plaintiff was damaged by backwater, the injury was consequential and indirect, and no recovery could be had without proof of actual damages. It is unnecessary to inquire whether this is a correct view of the law, because the verdict was for actual damages, and the instruction in reference to nominal damages, if erroneous, was harmless.
5. It is next insisted that the court erred in giving instruction number two, to the effect that if the water was backed by defendant’s dam onto the land of plaintiff, and he was thereby prevented from preparing it for or sowing it to crops, or, when so sown, such crops were destroyed or injured on account thereof, plaintiff would be entitled to recover the actual damages suffered by him, because, as it is argued, it assumes that plaintiff had and was in possession of the land in question, and that the cropping thereof would have been profitable, both of which questions were issues under the pleadings. It is error *287for a court, in instructing a jury, to assume as proven a fact in issue and. controverted: State v. Bowker, 26 Or. 309 (38 Pac. 124); State v. Hatcher, 29 Or. 309 (44 Pac. 584). But where the uncontradicted evidence is clear and convincing, or where the fact is admitted, the court may properly assume that it is true, and frame an instruction accordingly: State v. Morey, 25 Or. 241 (35 Pac. 655, 36 Pac. 573); 11 Enc. Pl. & Pr. 131.
6. And where the evidence is not all in the record, it will be presumed on appeal that the facts assumed by the court in its instructions were either admitted on the trial by the parties, or established by uncontradicted evidence: 11 Enc. Pl. & Pr. 136; Drinkout v. Eagle Mach. Works, 90 Ind. 423. The transcript in this case does not purport to contain a complete record of the trial, or of all the evidence given therein; and therefore, under the rule referred to, the court will presume that the instructions were based on facts admitted or conclusively proved.
7. The instructions requested by defendant, to the effect that the owner of a dam may swell the water in the channel of a stream in its natural -state to his neighbor’s line; that, in order for plaintiff to recover, he must show that the water actually flowed back upon his land through the wrongful act of the defendant; and that, if the land was injured or damaged by water from the south or southwest, defendant would not be liable therefor, — were given in substance by the court in the following instruction: “But the burden of proof is on the plaintiff to show that the dam. of defendant did back the water onto and over the land of plaintiff, and was the cause of the damages of which he complains, before he is entitled to recover any actual damages. And if the loss of the use of the land was occasioned by water from any other source, then you must find for defendant.”
8. There was no error in refusing to permit the cross-examination of the plaintiff concerning the manner in which he irrigated his land, or whether he promised his lessee, Porter, in 1899, that he would protect the land from water coming from *288the south by a levee. These were matters outside of the issues, and not relevant to any proper inquiry at the trial.
9. Instructions numbers three, four, and five, as given, are referred to in the brief, and discussed at some considerable length, but the bill of exceptions does not show that the giving of any of them was excepted to; hence they present no questions for consideration on this appeal. The judgment of the court below will be affirmed. Affirmed.
