The following opinion was filed on the 23d of June, 1880:
Cole, J.
In order for the plaintiff to succeed in the action, he must undoubtedly establish his legal title; in other words, he must recover on the strength of his own title, not on the weakness of his adversary’s. The inquiry therefore is, Did he prove a good title to all the land described in the complaint, which consists of four forty-acre tracts? In support of his adverse possession the plaintiff relied on two distinct chains of title: the one derived through the deed from the attorney in fact of Tuttle to Bequette, and Bequette to Collier, and the conveyance by the executors of Collier’s will to him, dated May 8, 1857; the other under or through conveyances from Tuttle to Foster, Foster to Nichols, and Nichols to plaintiff, dated July 13,1872. The validity of the first chain of title was passed upon by this court in Stephenson v. Wilson, 37 Wis., 482; and it was held defective as a paper title for reasons stated in the opinion. The other chain of title is a new element in this somewhat protracted litigation between the” parties, and seems to have been practically ignored on the trial by the learned circuit judge.
The plaintiff proved his paper title and rested, and the defendant went into his defense based on the tax deed. He was then stopped, and the plaintiff was permitted to go into the question whether he had not acquired title to the premises under the statute in regard to ten years’ adverse possession, claiming under the Collier deed. But while this method of trying the issues involved was illogical, and has served to confuse the record, it is not claimed that it affords any ground for [98]*98a reversal of the judgment. All the evidence bearing upon the question of possession on either side seems to have been gone into; and under the instructions of the court the jury must have found that the plaintiff had acquired a legal title to the premises by ten years’ adverse possession, claiming tinder the Collier deed. And now the first inquiry is, whether there is sufficient evidence in the record to sustain this verdict. On the part of the. defendant it is insisted that it is wholly unsupported by the testimony. Fie strenuously urges that there is no evidence whatever which warrants a finding that the plaintiff had such actual possession of any of the lands in dispute as would defeat his tax deed. We are constrained to disagree with counsel on this point. According to our view of the case there is sufficient evidence, as detailed in the bill of exceptions, to carry the case to the jury, and from which the jury might draw the conclusion they did in respect to plaintiff’s adverse possession.
It is unnecessary to recapitulate the evidence relating to this question. Suffice it to say, after a careful examination, we draw this 'inference from it. The remark is intended to apply to each forty-acre tract. The doctrine is distinctly laid down in Wilson v. Henry, 35 Wis., 241, affirmed in Stephenson v. Wilson et al., supra, and reaffirmed in Wilson v. Henry, 40 Wis., 594, that occupation of land under a paper title by mining operations, or its possession for the purpose of mining, will constitute as effective adverse possession, as against a tax deed, as its occupation for the cultivation of the soil and raising of crops. Says the chief j ustice, in the last case: “But, though mining is a less general and important, it is still a frequent and important industry here, entitled to protection as well as agriculture. It is not protected by the statute as agriculture is, but there is no reason why it should be proscribed by the statute, and we have seen that it certainly is not. While the law remains as it is, it is not an open question in this court that mining operations may constitute actual [99]*99adverse possession.” Page 607. Undeniably, the plaintiff’s possession under color of title under this rule of law was adverse, if the evidence showed to the satisfaction of the jury that he was exercising acts of ownership over the land, occupying it for mining purposes, and prosecuting this work as constantly and continuously as the nature of the business and customs of the country would permit or allow.
The defendant claims that there is not a scintilla of evidence that any mining was done on the north half of the quarter section, or, at least, on the northwest forty, after the tax deed was recorded. But this position is hardly borne out by the record; for there is testimony, surely, which conduces to prove, and from which the jury might well have found, that there were mining operations carried on on each forty-acre tract up to the time such mining was stopped by the, injunction in 1871. How clear or satisfactory the evidence may be upon that subject, is not a matter for this court to determine. "We can only inquire whether it was sufficient to carry the case to the jury on those questions. Upon that point we are quite clear that it was.
Now, in respect to the statute of limitations, the defendant insists that, by reason of the premises being vacant and unoccupied during the three years next after his tax deed was recorded, the statute runs in his favor. But it follows from 'what has just been said that this position is untenable, the premises not being vacant. The possession and occupancy of the premises by the plaintiff for the purposes of mining, as shown by the evidence, during any part of the three years, breaks the running of the statute in favor of the grantee of the tax deed, or any one claiming under such grantee. This is the settled law of this state. In Stephenson v. Wilson it was said, “ that any intervention or actual occupancy during the three years by the former owner, or of any person for him, disengages the bar of the statute, and relieves the former owner from the conclusive effect which would otherwise be [100]*100■given to the tax deed.” It is suggested, however, that this rule does not apply here, because the plaintiff did not acquire the legal title until he obtained the deed from Nichols in 1872. But still the plaintiff claimed “ the premises hona fide under a paper title, which he took believing it to be good. His possession is very distinguishable,«under the statute, from a mere trespass, as in Gunnison v. Hoehne, 18 Wis., 268. If Stephenson took actual adverse possession under his paper title, so as to interrupt the three years’ possession of the appellant under section 32, ch. 22 of 1859, he would presumably have defeated the appellant’s title, to the extent of such actual possession and of the constructive possession following upon it under section 6, ch. 138.” ‘ Ryan, C. J., in Wilson v. Henry, 40 Wis., pp. 608-9. These remarks of the chief justice seem to precisely meet and dispose of the objection that the plaintiff stood in no such relation to the premises as would make his use and occupation of them for mining purposes effectual to destroy the constructive possession under the tax deed.
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The following opinion was filed on the 23d of June, 1880:
Cole, J.
In order for the plaintiff to succeed in the action, he must undoubtedly establish his legal title; in other words, he must recover on the strength of his own title, not on the weakness of his adversary’s. The inquiry therefore is, Did he prove a good title to all the land described in the complaint, which consists of four forty-acre tracts? In support of his adverse possession the plaintiff relied on two distinct chains of title: the one derived through the deed from the attorney in fact of Tuttle to Bequette, and Bequette to Collier, and the conveyance by the executors of Collier’s will to him, dated May 8, 1857; the other under or through conveyances from Tuttle to Foster, Foster to Nichols, and Nichols to plaintiff, dated July 13,1872. The validity of the first chain of title was passed upon by this court in Stephenson v. Wilson, 37 Wis., 482; and it was held defective as a paper title for reasons stated in the opinion. The other chain of title is a new element in this somewhat protracted litigation between the” parties, and seems to have been practically ignored on the trial by the learned circuit judge.
The plaintiff proved his paper title and rested, and the defendant went into his defense based on the tax deed. He was then stopped, and the plaintiff was permitted to go into the question whether he had not acquired title to the premises under the statute in regard to ten years’ adverse possession, claiming under the Collier deed. But while this method of trying the issues involved was illogical, and has served to confuse the record, it is not claimed that it affords any ground for [98]*98a reversal of the judgment. All the evidence bearing upon the question of possession on either side seems to have been gone into; and under the instructions of the court the jury must have found that the plaintiff had acquired a legal title to the premises by ten years’ adverse possession, claiming tinder the Collier deed. And now the first inquiry is, whether there is sufficient evidence in the record to sustain this verdict. On the part of the. defendant it is insisted that it is wholly unsupported by the testimony. Fie strenuously urges that there is no evidence whatever which warrants a finding that the plaintiff had such actual possession of any of the lands in dispute as would defeat his tax deed. We are constrained to disagree with counsel on this point. According to our view of the case there is sufficient evidence, as detailed in the bill of exceptions, to carry the case to the jury, and from which the jury might draw the conclusion they did in respect to plaintiff’s adverse possession.
It is unnecessary to recapitulate the evidence relating to this question. Suffice it to say, after a careful examination, we draw this 'inference from it. The remark is intended to apply to each forty-acre tract. The doctrine is distinctly laid down in Wilson v. Henry, 35 Wis., 241, affirmed in Stephenson v. Wilson et al., supra, and reaffirmed in Wilson v. Henry, 40 Wis., 594, that occupation of land under a paper title by mining operations, or its possession for the purpose of mining, will constitute as effective adverse possession, as against a tax deed, as its occupation for the cultivation of the soil and raising of crops. Says the chief j ustice, in the last case: “But, though mining is a less general and important, it is still a frequent and important industry here, entitled to protection as well as agriculture. It is not protected by the statute as agriculture is, but there is no reason why it should be proscribed by the statute, and we have seen that it certainly is not. While the law remains as it is, it is not an open question in this court that mining operations may constitute actual [99]*99adverse possession.” Page 607. Undeniably, the plaintiff’s possession under color of title under this rule of law was adverse, if the evidence showed to the satisfaction of the jury that he was exercising acts of ownership over the land, occupying it for mining purposes, and prosecuting this work as constantly and continuously as the nature of the business and customs of the country would permit or allow.
The defendant claims that there is not a scintilla of evidence that any mining was done on the north half of the quarter section, or, at least, on the northwest forty, after the tax deed was recorded. But this position is hardly borne out by the record; for there is testimony, surely, which conduces to prove, and from which the jury might well have found, that there were mining operations carried on on each forty-acre tract up to the time such mining was stopped by the, injunction in 1871. How clear or satisfactory the evidence may be upon that subject, is not a matter for this court to determine. "We can only inquire whether it was sufficient to carry the case to the jury on those questions. Upon that point we are quite clear that it was.
Now, in respect to the statute of limitations, the defendant insists that, by reason of the premises being vacant and unoccupied during the three years next after his tax deed was recorded, the statute runs in his favor. But it follows from 'what has just been said that this position is untenable, the premises not being vacant. The possession and occupancy of the premises by the plaintiff for the purposes of mining, as shown by the evidence, during any part of the three years, breaks the running of the statute in favor of the grantee of the tax deed, or any one claiming under such grantee. This is the settled law of this state. In Stephenson v. Wilson it was said, “ that any intervention or actual occupancy during the three years by the former owner, or of any person for him, disengages the bar of the statute, and relieves the former owner from the conclusive effect which would otherwise be [100]*100■given to the tax deed.” It is suggested, however, that this rule does not apply here, because the plaintiff did not acquire the legal title until he obtained the deed from Nichols in 1872. But still the plaintiff claimed “ the premises hona fide under a paper title, which he took believing it to be good. His possession is very distinguishable,«under the statute, from a mere trespass, as in Gunnison v. Hoehne, 18 Wis., 268. If Stephenson took actual adverse possession under his paper title, so as to interrupt the three years’ possession of the appellant under section 32, ch. 22 of 1859, he would presumably have defeated the appellant’s title, to the extent of such actual possession and of the constructive possession following upon it under section 6, ch. 138.” ‘ Ryan, C. J., in Wilson v. Henry, 40 Wis., pp. 608-9. These remarks of the chief justice seem to precisely meet and dispose of the objection that the plaintiff stood in no such relation to the premises as would make his use and occupation of them for mining purposes effectual to destroy the constructive possession under the tax deed.
The learned counsel for the plaintiff say, in their brief, and the statement seems to be supported by the record, as we understand it, that the ruling of the court below was, in effect, that the plaintiff’s possession during the three years next after the record of the tax deed would not avail to defeat that deed, unless the plaintiff should prove a valid title to the premises during the time; and as his paper title failed to show such right to the possession, it was necessary that the plaintiff should prove adverse possession in himself, claiming under the deed from Collier’s executors of May 8, 1857, for ten years continuously before the record of the tax deed. They insist that this ruling was in conflict with the decisions in Wilson v. Henry, as reported in 35 and 40 Wis. There certainly seems to be justice in the criticism; but it is quite obvious that if there was any error in the view which the court took of the case, it operated in favor of the defendant. [101]*101And we will add that we quite agree with the same counsel in the position that there was really no legal inconsistency in the plaintiff relying on the Nichols deed to perfect his former defective title, and to establish his right to recover the possession of the land, and at the same time relying on his previous claim of title under the Collier deed, and possession under that claim, in order to turn the statute against and destroy the tax deed. The plaintiff’s taking possession in good faith under a paper title, which he supposed to be good, “ would operate to begin an actual adverse possession.” We know of no principle of law which would prohibit him from buying in an outstanding title to cure defects in his previous title, and at the same time insisting upon his adverse possession.
On the argument there was considerable discussion of the question whether, if the defendant was actually in possession of the premises prior to or at the termination of the three years from the record of the tax deed, the limitation would not run in his favor. The question is an interesting one, but there does not seem to have been any ruling upon it in the court below; therefore we do not feel called upon to decide it. If the defendant had desired this court to pass upon that question, he should have raised it on the record by some proper instruction. The circuit court seems to have utterly overlooked or ignored it in its general char’ge; but this omission, under the circumstances, cannot be assigned for error. It is quite impossible for the court always to cover every proposition of law in its charge, which may be applicable to some aspect of the case. It is the duty of counsel to present propositions, or call the attention of the court to them, upon which they desire its rulings. Now, in this case, the defendant asked the court to give eight specific instructions, not one of which refers to the question as to what his legal rights would be if the evidence showed he was actually in possession at the termination of the three years next after the record of the tax deed.
[102]*102As we have said, the defendant asked eight specific requests, which the court refused to give, and the defendant excepted to such refusals. The defendant also excepted to several portions of the charge as given. We do not think any of these exceptions should work a reversal of the judgment. We will not attempt to summarize either the charge or the instructions. Every proposition of law embraced in the instructions which were refused, and which was applicable to the case, was substantially given in the charge. Indeed, some portions of the charge are quite as favorable to the defendant as the law would warrant. In one place the learned circuit judge is reported to have used this language: “By the law in this state, I repeat, gentlemen, under this tax deed the title of the defendant would be good and perfect at the expiration of three years from the time of the recording of this deed, to wit, upon the fourth day of February, 1871; that is, in case the payments are continuously and unbroken, and the preynises unoccupied prior to that time” The last clause of this sentence is sheer nonsense, and, we presume, was not uttered by the learned circuit judge, who never fails to express with clearness and precision his views in his charge. Doubtless, there was some mistake on the part of the reporter in taking down the language of the judge. However this may be, the meaningless clause could injure no one. The law of the case was fully submitted to the jury, and it is impossible they-could have been misled by these words to the prejudice of the defendant.
On the trial, with other testimony to sustain his defense, the defendant offered, in evidence a judgment roll which showed that the plaintiff, in 1870, commenced an action of ejectment against the defendant to recover these same premises, which action was subsequently dismissed. It is now insisted that this record operated in the nature of an estoppel in pais, and that the plaintiff should not be allowed to deny that the defendant was in possession of the premises under his tax [103]*103deed when tbe ejectment suit was brought. The only answer which we deem it necessary to make to this position of counsel will be found in these remarks of the chief j ustice in Wilson v. Henry, when considering this very point: “ The record of the ejectment suit of Stephenson v. Wilson was apparently competent evidence bearing on the question of possession, valeat quantum; but it was certainly not conclusive. The statute authorizes an action of ejectment, in certain cases, against persons not in actual possession, but requires the complaint to aver that the defendant withholds the possession. Platto v. Jante, 35 Wis., 629, and cases there cited. The averment of possession in such a case is, therefore, not only formal, but untrue in fact, yet made imperative by an apparent oversight in the statute. Barclay v. Yeomans, 27 Wis., 682. And it would be unreasonable and unjust to hold it an estoppel.”
This disposes of all the questions in the case we deem material.
By the Gourt. — The judgment of the circuit court is affirmed.
A motion by the appellant for a rehearing was denied September 21, 1880.