Sydnor v. Palmer

29 Wis. 226 | Wis. | 1871

DixoN, C. J.

Tbe depositions of tbe witnesses examined abroad were all admissible. Tbe objections to those of tbe Virginia witnesses were, that, though they showed tbe witnesses were sworn, they did not show they were sworn to speak the truth, and tbe certificates did not state that tbe depositions were read to or by tbe witnesses, or that they knew tbe contents of' them. Eule 61, Circuit Court Eules of 1849, prescribes tbe mode of taking such depositions, or of executing tbe commission issued for that purpose, and seems to have been strictly and fully complied with. Tbe language of tbe rule in these particulars is: “Every interrogatory, direct and cross, shall be propounded to each witness, and bis answer thereto shall be taken and returned with tbe commission. Each witness shall subscribe his name at tbe end of tbe answers to tbe interrogatories, and tbe commissioners shall subscribe their names at tbe foot of each page of the testimony, and shall certify in their return that tbe witnesses were duly sworn or affirmed before giving their evidence.” It is enough that these requirements appear to have been complied with, to authorize tbe admission of tbe depositions. It appearing that tbe witnesses answered tbe several interrogatories, and that they were “ duly sworn,” tbe presumption is that they knew tbe contents, and were sworn to speak tbe truth, according to tbe form of oath usually administered, until tbe contrary is shown. Eule 65 declares, that “ in all cases where commissions have been issued, and testimony taken in accordance with these rules, tbe evidence may be read on tbe trial of tbe cause or tbe bearing of any proceeding wherein they were taken, with tbe same effect as if tbe witnesses examined bad been produced on tbe trial or bearing.”

Tbe objection to tbe deposition of tbe witness examined at Chicago was, tbat tbe commission was issued to tbe one commissioner named in tbe rule entered bj tbe plaintiffs, and not jointly to him and tbe- other two persons nominated by tbe defendants as commissioners to act with bim. Tbe cross-interrogatories filed and served by tbe defendants were preceded by a. statement tbat tbey objected to tbe person named in tbe rule acting as sole commissioner, and tbey thereby nominated two other persons as commissioners to act with bim. Tbe attorney for tbe plaintiffs disregarded tbe objection and nomination thus made, and justifies bis action, on tbe ground tbat it was tbe duty of tbe. defendant’s attorneys, if tbey desired any change in tbe commission, or tbat tbe two other persons, named by them be also appointed, to have moved tbe court for an. order vacating or modifying the rule already entered. Tbe rule tbat a commission issue, entered as of course in tbe common rule book kept by tbe clerk under rule 59 of tbe circuit court rules, must undoubtedly name tbe commissioner to whom the- commission is to be directed. This appears from tbe language of. rule 60, which provides tbat “tbe commission shall be directed to tbe commissioners named in tbe rule, and be addressed to them jointly and severally.” We-are satisfied of tbe correctness of tbe course pursued by tbe attorney for the- plaintiffs, and that tbe commission- was properly directed to tbe commissioner named in the rule, in- tbe absence of a motion and order of tbe court or judge tbat it be otherwise issued.

Tbe. trust expressed in tbe deed from Francis J. Dunn and wife to Marvin- Hollister, executed and acknowledged on tbe 12th day of April,. 1852, was clearly a passive one; and tbat being-so, no estate or interest, legal or equitable, vested in the supposed trustee, Hollister; but tbe legal title and absolute right of property passed to and vested in the- cesluis que trust under tbe operation of the statute, provided tbe cestuis que trust were 'sufficiently described in, or their identity and the intention of tbe grantors can with reasonable certainty be ascertained from tbe words of tbe deed. B. S., 1849, cb. 57, secs. 3 and 5, — tbe same as secs. 3 and 5, cb. 84, R. S., 1858; Goodrich v. The City of Milwaukee, 24 Wis., 429, 430; Riehl v. Bingenheimer, 28 id., 84. The conveyance in question was to Marvin Hollister “ in trust for the use and benefit of-, heirs-at-law of Seneca M. Conway, deceased, for whom the said Marvin Hol-lister is legal guardian, party of the second part." 'One of the principal points in controversy on the trial below, was as to the sufficiency of this description of the persons beneficially interested, and whether the plaintiffs had shown themselves to be such persons. It is well settled that any description of parties in an instrument of this kind is sufficient, from which the court and jury, aided by a knowledge of surrounding facts and circumstances, are able to say with reasonable certainty that seme and what particular persons were intended. It is not necessary that the parties should be described by their names, in order’ to give effect to the instrument, but any other description by which they may be identified will serve as well; and even mistakes in the names may be shown, and corrected or disregarded, by proof of extrinsic facts and circumstances demonstrating the falsity. It is always competent and proper to receive proof of the situation of the parties, and of their relations to each other and to the subject of the contract or conveyance, and of all circumstances leading to and attending its execution and delivery, for the purpose of explaining its meaning and applying it to the persons or subject matter intended, where those are doubtful on the face of the instrument, or not fully and definitely’ ascertained by the words used. The authorities to these propositions are numerous, and we refer only to Staak v. Sigelkow, 12 Wis., 239 to 243; and Ganson v. Madigan, 15 id., 153-155, and authorities there cited.

One item of proof offered and received in this case, by way of identifying the plaintiffs as the cestuis que trust intended, was the bond of Hollister, with sureties, executed on the 12th March, 1852, reciting that he had been on that day appointed guardian of the plaintiffs by the county court' of La Fayette county, in wbicb county tbe land in suit was situated. Tbis was- followed. by secondary evidence, of bis appointment as-guardian, or sucb evidence tending to.sbow it,- and that letters of guardianship were issued to him, there being no record of the appointment, in. the county court, and the letters of guardianship having been lost.

Another item of proof offered and received for- the same purpose was the last will and testament of Seneca M. Conway, deceased, who died testate- in La Fayette county in the month of February, 1848; which will was admitted to probate in the county court- of said county on the 7th day of March, 1848. Francis J. Dunn, the grantor in- the deed, was the executor nominated and appointed in the will, and to whom letters testamentary subsequently issued. It appeared from the will, a- recital of the: particular provisions of which is- unnecessary here,, that the. plaintiffs, as, legatees- named in it under the description of “ my nieces and nephew, children of the late William H. Sydnor, of the county of Northumberland in the state of Virginia,” were the parties, beneficially interested, in the land in controversey, which- was spoken of in the will as H consisting of parts of veins of lead ore, commonly called lead ore diggings.” It furthermore appeared, from an account- of receipts-and disbursements rendered by Mr. Dunn, as executor, to the county court on the 10th day. of March, 1852, and from a statement or- report made by him at the same time, under oath, of the-condition of the estate and of his management and transactions in connection therewith, and in execution of his trust, both of'which were-likewise offered and-received in evidence; that the entire equitable interest in the land was in the testator, Conway, at the time of his decease, but that the legal title was at. that, time in Mr. Dunn, who subsequently became executor, and so-continued until the above statement, or report •was made, and until he executed the conveyance in trust to Mr. Hollister on the 12th of April following.

It was, likewise shown by the depositions of witnesses, that the-testator, Cartway, was never married; that Re died leaving neither ancestor nor-issue-surviving him; and- that the plaintiffs and two other persons, his nephews'and nieces; children of two of his deceased sisters, were his heirs-at-law. He* left no surviving brother or sister, half-brother or half-sister.-

Evidence of these facts and circumstances, or tending to prove them, was admitted, and properly so, to explain the situation of. the parties and their relations to each other and the subject matter, and so to' ascertain and. give- effect, if possible, to- the language of the instrument and the intention of theparties-to it, which were otherwise unintelligible to the court and'jury. It was evidence proper to point out and show who were the cestuis que trwrt intended; and the' jury, underthe instructions of the court, found the plaintiffs were the persons answering to the description contained- in the deed; And tfiis conclusion of the jury is quite satisfactory to us. Indeed, we do not see how, under- the evidence, they could have found differently. It was shown that the plaintiffs were “ heirs-at-law, of Seneca- M. Oonway, deceased.” v It was shown that they were the heirs “ for whom the said Marvin Hollister was legal guardian,” or at least'supposed to have been at the-time the deed was executed; The latter, as well as the former, are descriptive words in the deed; and neither could, be rejected, in determining who the cestuis queinist were¿ Both descriptions were- fulfilled in the persons of the plaintiffs, whilst neither of the other heirs came within-the latter. And this conclusion, derived from the language- of the' deed, is greatly strengthened by a. consideration- of the • provisions of the will, and of Mr. Dunn’s relations to-- it and- the estate, and of the obligations which rested-upon him with respect to these plaintiffs, as- executor and trustee. He- was about to surrender his charge -as executor and-trustee,- and to leave the state, not to return, and it seems morally- certain that he could not have intended to convey the land to the use or for the benefit of any other persons than the legatees, or- parties beneficially interested in it under the will, who1 are-the plaintiffs in' this action. These considerations gire such force to the argument, that the words “ heirs-at-law ” were used by mistake for the word “ legatees,” which was intended; but whether this was so or not was immaterial, since the construction must be the same in either case.

It is argued that in the bequest in the will of all his property to his “ nieces and nephew, children of the late William H. Sydnor,” the word “ children” must be intended to have meant the step-child, Novella C. Blackwell, a daughter of Mrs. Syd-nor by a former husband, whose relationship to the testator by consanguinity, was the same as that of the plaintiffs. The court below rejected this construction, and we think properly. No facts were shown or reason assigned, other than the relationship of Novella C. Blackwell, why the ordinary and generally received meaning of the word should not be adhered to, or why the testator did not so intend. Such relationship may show why she might have been remembered by the testator, and properly regarded as one of the objects of his bounty; but it will hardly suffice to change or extend the meaning and application of a word in common use, the ordinary signification of which must have been familiar to the testator. It must be supposed that he used the word in its usual and familiar sense, intending that the same meaning should be attached to it when read by others. If he had intended the step-daughter as well, then why did he not say “ my nieces and nephew, children of my sister, the late Mrs. Sydnor, wife of the late William H. Sydnor,” or use other equivalent words, which would have made his meaning plain? We know not his motive,'or why he should have manifested any partiality for the children of his sister’s second marriage, nor is it material to inquire. It may have been that Novella 0. Blackwell was not without a competency or more, as the heir of her father, the first husband ; or there may have existed some other reason in the mind of the testator for withholding from her any share in his estate. But whatever his reasons may have been, they are immaterial, so long as the words of the will are such as to leave no doubt of the testator’s intention. Nor are we to forget that the objection does not come from Novella 0. Blackwell, now Mrs. Hudnall, who apparently acquiesces in the construction of the will claimed by the plaintiffs. It is not made in her behalf nor in her interest, but by strangers, whose only motive is to defeat the entire estate or right in the property passed by the will.

Another objection was, that it was not shown that Marvin Hollister was the legal guardian of the plaintiffs; and upon this point the court below charged the jury, if they should find he was not, yet it would be sufficient if the plaintiffs satisfied them “ that both Erancis J. Dunn and Marvin Hollister regarded the latter as the legal guardian of the plaintiffs.” This instruction was clearly correct. It was enough that Mr. Dunn, the grantor, so -regarded Mr. Hollister, for what Mr. Dunn, although he may have been mistaken, actually thought and ex: pressed in words in the deed, significant of his intent as to the persons of the cestuis que trust, as truly indicated who those per- • sons were, as if the fact had been as he supposed it to be. It was immaterial, therefore, whether Mi’. Hollister was in reality legal guardian or not, if only Mr. Dunn so believed him to be, and acted on that belief in designating or describing the persons for whose benefit the conveyance was made.

Another objection argued at great length by counsel for the defendants in this court is, that Mr. Dunn violated the trust reposed in him, and exceeded the powers conferred upon him by the will, in attempting to convey the land to Mr. Hollister or any one else, at the time and in the manner he did; and consequently that the deed was absolutely void, and no title passed to or vested in Mr. Hollister or tbe plaintiffs. It is conceded that Mi’. Hollister paid Mr. Dunn nothing for the land; that he did not buy, nor Mr. Dunn sell the same to him; and the argument is based upon this fact, and upon a'statement of Mr. Dunn, contained in the report made by him to the county court shortly before the conveyance, that, according to the trust confided in bim and the directions of the testator in his will, the time had not yet arrived when he was authorized to sell the land. It also proceeds upon the provisions of the will referred to by Mr. Dunn, and which were as follows: “ And it is my will and desire, that the property of which I die seized, in the territory of Wisconsin, consisting of veins of lead ore, commonly called lead ore diggings, be retained and worked for the benefit of my legatees aforesaid, so long as it may be profitable and pecuniarily beneficial to the interest in the same bequeathed to my nephew and nieces aforesaid; but when the same ceases to be profitable and beneficial as aforesaid, it is my wish and desire that the same be sold for the best price or sum of money that the same will bring, and that the money arising from such sale or sales is hereby willed to my nephew and nieces aforesaid.” It is needless to state the particulars of Mr. Dunn’s report; for, conceding all that is claimed by counsel with respect to the nature of the trust, and Mr. Dunn’s want of authority to transfer it, or to convey the land to any other person, we still think it was competent for him, with the assent of the plaintiffs, or subject to their future ratification, to make the conveyance directly to them, which was the effect of the deed. The plaintiffs were' the parties solely interested in the working of the mines and in the proceeds of the sale of the land; and it certainly cannot be contended that it was incompetent for the trustee and executor to convey the land to them, with their assent. If they are satisfied to take the land and discharge the trustee and executor, as they do by accepting it, who else shall object? No other person has any interest or right to interfere in the transaction. A stranger cannot interfere, and ask the court to set aside the conveyance or declare it a nullity. It must always be in the power of the trustee and cestuis que trust, or parties beneficially interested, under such circumstances, thus to deal with each other with respect to the trust estate. The plaintiffs having attained their majority, and being under no disability, seek to ratify, and have ratified, the conveyance to themselves; and it is not for the defendants to deny them the privilege, or object to their doing so.

The question of the statute of limitations upon the tax deeds, we regard as altogether out of the case. No copies of those deeds are set out in the record or contained in the bill of exceptions ; but it was admitted on the trial, at the time they were offered, that they were void and conveyed no title. They were offered and received in evidence “ for the only purpose of aiding the defendants’ title by possession.” It does not appear, however, that any possession was ever had or held by the defendants under those deeds. They were executed to the county of La Fayette, respectively, in the years 1850, 1852 and 1853 ; and the county released and quit-claimed to Mr. Strong in March, 1856; and there the supposed chain of title under them ended, Mr. Strong thereafter made no conveyance to the W est-ero. Wisconsin Mining Company, or any one else in the line of the defendants’ grantors. In'March, 1856, the Western Wisconsin Mining Company was, according to the testimony of Mr. Strong, in the possession and occupancy of the land, claiming title to the whole of it, and had been since the conveyance from himself and wife to that company on the 19th of June, 1854. The latter conveyance is not set forth in the record, nor are its nature or contents shown. It does not appear that it was a deed with covenants of seizin and warranty, so that the supposed title acquired by Mr. Strong from the county would have inured for the benefit and use of the company, if indeed tho doctrine of inurement would be applicable to such a case. The facts present, therefore, no question upon a possession taken and held adversely under a void tax deed, and no question upon the statutes of limitation. Mr. Strong, the grantee and claimant under the tax deeds, has, according to his own statement in evidence, never been in possession, asserting or claiming title under them or by color thereof $ nor has any other person been in possession under or for bim, or asserting or claiming through him or in his behalf, by virtue of the same tax deeds.

The chief remaining question on the trial below related to the running of the statute, of limitations in support of the title claimed by the defendants under the deed from Mr. Hollister to Mr. Strong, which was made and delivered on the 25th day of April, 1854. That statute is section 6, chapter 138, R. S., which creates a limitation of ten years, and bars the action of the owner after that period has elapsed, “whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of any premises under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises in question, or upon the judgment of some competent court; and that there has been a continual occupation and possession of the premises included in such instrument or judgment, or of some part of said premises under such claim, for ten years.” The same section declares -that “ the premises so included, shall be deemed to have been held adversely,” except when they are divided into lots, when the possession of one lot shall not be deemed the possession of any other. It would seem from the testimony of Mf. Strong, that he was in possession of the premises, having or claiming title to an undivided portion of them as tenant in common with the other owners, at and prior to the time he received the conveyance from Mr. Hollister. He spoke of the legal title to an undivided half of the land having been in Mr. Dunn, and stated in his testimony that he purchased and took a deed from Mr. Dunn for an undivided third, which was probably before Mr. Dunn removed to California, in 1852. He also stated that he occupied, with his employes, a log house which was on the land, in 1853. The evidence upon the point, it must be admitted, is not very clear; but if Mr. Strong was in possession al that time, claiming an undivided interest in the land as tenant in common with the other owners, it may be regarded as very doubtful wbetber be could purchase or take any merely colora-ble title or conveyance of the shares of his co-tenants, and then claim adversely to them, so as to set the statute of limitation to running in his favor, until hé had given them actual notice of such claim.

The rule of law in such case very clearly appears to be, that where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them, and to turn his occupancy into an adverse possession or enjoyment under an invalid or merely colorable claim of title to the whole, and so as to acquire the title of the entire estate by lapse of time under the statute of limitation, he must show when knowledge of such adverse claim, or of his intention so to hold, was brought home to the other tenants; for, from that time only will his possession be regarded as adverse. Willison v. Watkins, 3 Peters, 43 and Whaley v. Whaley, 1 Spears, 225, are leading cases in this country upon this subject. See also Lapert v. Todd, 82 New Jersey Law (3 Vroom), 124; 3 Washburne on Real Property (3d ed.), 127 to 129; and Tyler on Ejectment and Adverse Enjoyment, 882, and authorities cited. Such is always the rule, unless the exclusive use and enjoyment or sole and uninterrupted possession and pernancy of the profits by one tenant in common, have been so long continued as to give rise to the presumption of, or justify the jury in finding, knowledge and acquiescence on the part of the other tenants for the period of time prescribed by the statute. 3 N. H., 51; Cowp., 217; 1 Caines, 83; 6 Mass., 229; 10 Mass., 464; 3 Allen, 354; 21 Ala., 156. The cases of tenants in common, themselves holding or claiming by a defective or insufficient title, have been regarded as resting on different principles. It has been held, as between such, that one of them may, under some circumstances at least, acquire and hold for his own exclusive benefit, an outstanding paramount title. See Frente v. Klotsch, 28 Wis., 312, and cases there cited.

But it is unnecessary to pursue this inquiry further as to the character of Mr. Strong’s possession, since be, so soon after tbe conveyance to bim by Hollister, conveyed, or professed to convey, tbe entire estate in tbe land to the corporation known as tbe Western Wisconsin Mining Company. His deed to tbat corporation was dated and recorded on tbe 22d day of June, 1854. It purported to'convey and give a complete title of tbe whole land to tbe mining' companyand as tbe company was under bo disability, as tenant in common or otherwise, to claim and bold adversely to any former claimant or owner in part or in whole of tbe premises, 'without causing notice to be given to such claimant or owner, -it follows tbat tbe possession of tbe company, whatever it was, and of those claiming under if, must henceforth have been regarded -as entirely and unconditionally adverse. It may be :said to be a general rule, tbat, if one enters-under color of title, be is presumed to enter claiming according to tbe extent of bis title. Where one enters upon land under a recorded, deed, which purports to give bim a complete title, bis .possession 'becomes adverse to all tbe world. Stevens v. Brooks, 24 Wis., 326, and cases cited ; and especially Jackson v. Smith, 18 Johns., 406.

Tbe question of adverse possession and of tbe bar of tbe statute in this case, therefore, turns on tbe nature and extent of tbe occupancy,'-or- tbe manner i'n which tbe premises were held and used by the Western Wisconsin Mining Company, and those ■claiming Under it, after tbe 22d day of June, 1854. Tbe question may in fact be said 'to turn upon the nature and extent of tbe occupancy by tbe mining company between tbe date of the deed to it, and tbe month of January or Eebruary, 1858, -at which last date; Mr. Strong testified, -tbe company erected a bouse on tbe land, and put in a primp to exhaust water - fr'om the mines. Between those dates, according to tbe testimony of Mr. Strong (and bis is the Only testimony) the land Was only Occupied by mining tenants, under verbal leases, who engaged in Working out old “ leads,” and paid tribute to ‘the company-in proportion to the quantity Of lead' ore obtained by them. There were, during that time, no buildings or structures of any kind upon the land, and the same was wholly uninclosed by fences, and uncultivated, “ except the gardens of mining tenants, some of whom erected stone fences for little garden patches.” Mr. Strong also testified that there “ mighthave been one or two and sometimes three tenants of this sort on at one time, before 1858.” He did not testify that the premises were continuously so occupied. It is also true that Mr. Strong testified on his direct examination, that “ from the time of the execution of the deed from the county to myself, dated March 6, 1856, until September, 1862, the Western Wisconsin Mining Company, was in the exclusive possession and occupancy of the land described in the complaint, a considerable portion of the time running a pump.” And he likewise further testified: “I think, from January, 1864, the Phoenix Lead Mining and Smelting Company have been in possession for mining purposes, and Palmer for agricultural purposes. The possession of the defendants was open, notorious and exclusive. Ever since the deed from Hollister to me, I and my grantees have been in possession, claimed, and supposed we had, the whole title.” The latter extracts are given because relied upon by counsel for the defendants as showing a continuous adverse possession from June, 1854. It is obvious that they are but statements of the opinion or conclusion of the witness from his knowledge of the facts as to the character and extent of the possession, and not a statement of the facts themselves, which the nature of the inquiry or the subject under investigation demanded, and which alone could enable the court and jury properly to solve and determine the question. The facts with regard to the possession from 1854 to 1858, as shown by the same witness were as above stated.

And first we observe of these facts, that it did not appear from them that the occupancy, such as it was, was continual. The words of the statute above quoted are, “a continual occupation and possession.” Evidence of adverse possession is always to "be construed strictly, and every presumption is to be made in favor of the true owner. Such possession is not to be made out by inference, but by clear and positive proof. Suck is tbe language of the authorities, and the rule is well settled. 37 N. H., 367; 13 id., 485; 3 id., 26, 50; 10 id., 402; 9 Johns., 167; 1 id., 157; 8 id., 220; 12 id., 367 ; 10 Mass., 146; 4 id., 418; 14 Pick., 228; 3 Greenl., 131. And the same principle governs wherever adverse user or enjoyment is relied upon as the foundation of title, or any right claimed against the party otherwise shown to be the owner, 23 Wis., 555, and cases there cited; Kirk v. Smith, 9 Wheat., 288.

The burden of establishing the kind of possession required by the statute, was upon the defendants; and this they must have shown by clear and positive proof, 3 Washb., on Real Prop., 123, 127. The testimony failed to do so. It did not show that the occupancy by the mining tenants was continual and uninterrupted. For aught that appeared or was clearly and positively proved, as the rule requires, there may have been considerable interruptions in such occupancy — times when for weeks or months, perhaps, no tenant was working the mines or otherwise occupying or possessing, 3 Washb., supra, 123, 126. The proof did not demonstrate to the contrary of this • and the plaintiffs, as the true and lawful owners, were entitled to the benefit of the presumption.

The requisites of the possession in other respects, or facts necessary to make it adverse, are defined by the next» succeeding or seventh section of the same statute, as follows: “For the purpose of constituting an adverse possession by any person claiming a title founded upon some written instrument or some judgment, land shall be deemed to have been possessed and occupied in the following cases:

“ 1. Where it has been usually cultivated and improved.

“2. Where it has been protected by a substantial enclosure.

“ 3. Where, although not enclosed, it has been used for sup-plj of fuel, or of fencing timber, for tbe purpose of husbandry, or the ordinary use of the occupant.

“ 4. Where a known farm or a single lot has been partly improved, the portion of such lot which may have been left not cleared, or included according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved or cultivated.”

Both sections of the statute were read to the jury as part of the charge; and in addition the jury were instructed, at the request of the defendants, that the continued occupation of mineral ground for mining purposes was such possession as is contemplated by the latter section. The correctness of the latter instruction is matter of grave doubt in the judgment of-this court. Statutes of this nature, which operate in restraint of the true title, or to make a certain kind of possession effectual for that purpose, if they are not to be construed strictly, yet ought not to be construed so liberally as to include within them any case not fairly within the words. The State ex rel. Wolff v. The Board of Supervisors of Sheboygan County, (ante, p. 97). The courts have no power of addition or amendment, by which they can extend the operation of a statute, or adapt it to cases not provided for. The party whose title is to be destroyed or remedy barred, may properly stand on the letter of the statute,- and insist upon a strict compliance with its conditions. We fail to discover any thing in the language of this statute by which it can be adapted to such a case. Perhaps mining in land for coal to supply fuel for the ordinary use of the occupant would fall within the third subdivision, the meaning of which obviously is, that the fuel or fencing supplied from unenclosed land must be for the purpose of husbandry or the ordinary use of the occupant. It seems clear, therefore, that all the provisions of the statute relate and are intended to apply only to the use and occupation of land for the purposes of husbandry, and that its use or occupation for the purpose of digging mineral, or other works and operations beneath the surface, and not connected with agriculture or the ordinary use and cultivation of the soil, is not included. But it may be said that these observations are unnecessary; and so in strictness they seem to be, since, notwithstanding the instruction, the jury found there had been no adverse possession for the period of ten years before the commencement of the action.

The verdict must have been on the ground above shown, that there was no sufficient proof of continued occupation, either for mining or any other purpose, during the period from 1854 to 1858; and with that conclusion we are quite satisfied. The clear and positive evidence required by-law was not given.

Another objection is, that the court erred, in its instruction as to what constituted a disseizin or ouster sufficient to enable the plaintiffs to maintain their, action of. ejectment. The correctness of the instruction is shown by Wilkinson v. Filby, 24 Wis., 441,

The objection that the court could not decide the motion for a new trial, nor render final judgment,, in the county of Grant, is also untenable. Stevens v. Mayor, 25 Wis., 533.

It appears, therefore, from an examination of the entire case and all the exceptions taken, that there was no error in the trial'and proceedings, and that the verdict and judgment should not be disturbed.

By the Court — The judgment is affirmed.