Conger, J.

This is an appeal from the judgment of the court of the third judicial district, county of Lewis and Clarke.

The cause was tried by the court, a jury having been waived, and was for the possession of a certain piece or parcel of ground situate in the town of Helena, and described as ten feet front on Main street by one hundred and twenty-two feet deep, off the northerly side of lot No. 14, in block No. 37, of the town site of Helena, and for •damages for withholding possession.

Upon the trial of the cause, the court found special findings of fact as follows, to wit: First. That this cause was commenced in this court by the filing of the complaint and the issuing of a summons thereon, on the 29th day of July, A. D. 1879. Second. That thereafter, to wit, on the 29th day of July, 1879, said summons was served upon the defendant personally by the sheriff of Lewis and Clarke county, as appears by his return on file. Third. That the predecessors in interest of the said defendant went into actual possession and occupancy of the property in controversy in the year 1866, were inhabitants of the town of Helena, and continued in such possession up to the time of the sale and conveyance of the same to defendant. Fourth. That the probate judge of Lewis and Clarke county, Montana territory, entered said town site, as provided by law in such cases, on the 7th day of January, 1869, and thereafter, on the-day of May, 1869, made to the predecessors in interest of said defendant a deed for lot 15, block '37, in said site, plat and survey, under which the defendant, as grantee of such predecessors, claims the property in controversy, since which date the defendant and his *462predecessors in interest have been in the actual possession of the property in controversy, the same, having been inclosed by a substantial fence in 1870, and prior to the issuance of the deed for lot 14 by probate judge to the plaintiff, which fence has been maintained by the defendant and his predecessors in interest from that date until the date of the commencement of this action. Fifth. That defendant, since his purchase of the said property, and his predecessors in interest since the year 1866 and. up to the bringing of this action, were in the actual possession of the property in controversy, and since 1870' have had the same inclosed by a substantial fence, and during all of said time have claimed title to the same exclusive of all other right. Sixth. That on the 5th day of December, 1870, the probate judge conveyed by deed to the plaintiff the property in controversy, while the same was so in the possession of said defendant’s predecessors in interest, and that ever since said conveyance said defendant and his predecessors in interest have occupied and possessed said property under chain of title thereto, with the knowledge of the plaintiff, and that the plaintiff, up to the time of the commencement of this suit, was not and never had been in the possession of said property.

The court finds in other findings that plaintiff received a deed to lot 14 from the probate judge on the 5th day of December, 1870, which deed covers the ten feet in controversy; that the defendant and his predecessors in interest have been in possession of the ten feet in controversy since 1866, and have held such possession by claim of title by virtue of their deed to lot 15.

The court finds as matter of law: First, that the defendant is the owner of the property in controversy by virtue of the occupation and possession of the same by his predecessors prior to and at the time of the plat and survey under the town site act and his deed of conveyance therefor. Second, that any claim plaintiff may *463have had thereto was and is barred by the statute of limitations since his receipt of the deed for the same and before his cause of action, if any, arose therefor.

To which findings of law plaintiff duly excepted.

The court rendered judgment for defendant.

The appellant demurred to defendant’s answer1, which demurrer was overruled. The filing of a replication and going to trial is a waiver of the demurrer, and it cannot now be considered.

Appellant claims that the court erred in sustaining defendant’s motion for non-suit. This claim cannot be considered in this court on appeal, for the reason that the evidence is not before us, and without it the question cannot be determined.

And as to the error urged in the admission of improper evidence, there is no statement on motion for new trial. It will be assumed that the court below proceeded correctly.

Whatever may be said as to the first finding of law by the court below, the finding of facts warrants the second finding of law, and it is correctly stated. The cases cited by appellant, when applicable, are themselves in point. 23 Cal. 437; 38 Cal. 78; 31 Cal. 154; 43 Cal. 250.

See section 34, Code of Civil Procedure, for the purpose of constituting adverse possession by a person claiming under a written instrument. It is deemed to have been possessed, etc., when protected by a substantial inclosure. The same is said in section 36. And in section 35 the law is stated to be that no more than the land actually occupied, and no other, is deemed to have been held adversely.

It is clear the several findings of law are correct, and are conclusive of the rights in this cause, and the judgment of the court below is affirmed.

Judgment affirmed, with costs.

Judgment affirmed.