Iowa County WI Archives Court.....Poquette, John October 23, 1871 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/wi/wifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Nancy Poquette npoq@hotmail.com October 10, 2006, 4:24 am Source: Univ. Of Wisconsin At Platteville, Iowa Series 24, Case #3090 Written: October 23, 1871 The State of Wisconsin, Iowa County Circuit Court ALEX WILSON, plaintiff against WILLIAM HENRY and JOHN POQUETTE and JOHN M. SMITH, defendants: The above named plaintiff complains and alleges that he is the owner in fee and entitled to possession and in actual possession of the following described Real Estate lying and being in Iowa County, State of Wisconsin and more particularly described as follows to wit: The South West quarter of Section number seven 7, Township number five 5, Range Number Three(3) East and that in the past two weeks said plaintiff has made valuable improvements thereon. This plaintiff further shows that said defendants did either personally or by or through their agents on the 21st day of October 1871, break and enter upon said premises and attempt to _________________ up the ground with wagons and encumbering said premises with lumber and other materials rendering said premises unfit for cultivation whereby said plaintiff has been injured in the sum of one hundred dollars. This plaintiff further alleges upon information and belief that said defendants intend to dispossess this plaintiff of said above described premises with force and arms and that they have threatened to take possession of said premises and thereby do plaintiff irreparable (?)____ and the said defendants are procuring men to go on to said premises and thereby greatly disturb and damage the plaintiff and hinder his peaceful occupation of said premises, that there is great danger that said defendants will attempt to take possession of the premises described in the complaint to the great injury of the plaintiff. Herein subscribed and sworn to before me this 23rd day of October, 1871. ALEX WILSON CALVERT SPENSLEY, Circuit Court Commissioner Iowa County, Wisconsin Wherefore said plaintiff prays judgement against said defendants for the sum of one hundred dollars and also further prays that said defendants, each and all of them, their agents, attorneys and all others acting in aid or assistance _________________and strictly enjoined from again entering upon said premises or from in any manner meddling with the plaintiffs peaceful occupation of all and every part of said premises until the further order of this Court and for such other and further relief as shall be just and equitable. ALEX WILSON, attorney per se The State of Wisconsin Iowa County ALEX WILSON being duly sworn says he is plaintiff from the above titled action, that he has read the foregoing complaint and knows the contents thereof and that the same is true of his own knowledge except as to the matters therein stated upon his information and belief and as to those matters he believes it to be true. ALEX WILSON Subscribed and sworn to before me this 23rd day of October 1871 CALVIN SPENSLEY Circuit Court Commissioner, Iowa County, Wisconsin The State of Wisconsin Iowa County Circuit Court ALEX WILSON, plaintiff against WILLIAM T. HENRY, JOHN M. SMITH and JOHN POQUETTE, defendants The State of Wisconsin to each of said defendants WILLIAM T. HENRY, JOHN M. SMITH and JOHN POQUETTE, You are hereby summoned and required to answer the complaint of ALEX WILSON plaintiff above named, a copy of which is hereto annexed and to serve a copy of our answer to said complainant or me at my office at the City of Mineral Point, Iowa County, Wisconsin within twenty days after the service of this summons exclusive of the day of such service and if you fail to answer said complaint as hereby required, the plaintiff will apply to the Court for the relief demanded in the complaint. Iowa County Circuit Court ALEX WILSON, Plaintiff against WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH, defendants Whereas the above named plaintiff is desirous that an injunction issue against the above named defendants in an action commenced in this Court with the above title, now therefore, I the undersigned ALEX WILSON, Plaintiff of the City of Mineral Point, Iowa County, Wisconsin, do hereby, pursuant to the statute undertaken on the part of said plaintiff, that I will pay to the said defendants such damages as they may sustain by reason of such injunction not exceeding the sum of Two Hundred Fifty Dollars, if the Court shall finally decide that the plaintiff was not entitled thereto. Dated October 23, 1871 ALEX WILSON Iowa County Court ALEX WILSON, Plaintiff against WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH, defendants It appearing from the complaint herein its action duly verified, and from the affidavit of ALEX WILSON that the said plaintiff is entitled to the relief demanded in the complaint and that such relief consists in restraining the said defendants from entering upon the south West quarter of Section Seven, Township five, Range Three (3) East in Iowa County, State of Wisconsin, being the premises described in the complaint and also in restraining said defendants from in any manner meddling with the plaintiff's peaceful occupation of said premises; Now therefore, in consideration of the premises and of the particular matters in the said complaint and affidavit set forth, I do hereby command and strictly enjoin the said defendants WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH and all their counselors, attorneys and agents and all others acting in aid or assistance of them, and each and every of them do absolutely desist and refrain from forcibly entering upon the premises herein before described with intent to dispossess the plaintiff and also absolutely desist and refrain from again in any manner forcibly meddling with the occupation of said premises by said plaintiff until the further order of this court. Dated October 23, 1871, CALVERT SPENSLEY, Circuit Court Commissioner Iowa County Wisconsin State of Wisconsin, Iowa County Circuit Court ALEX WILSON against WILLIAM T. HENRY, JOHN POQUETTE, JOHN M. SMITH The defendant WILLIAM T. HENRY for his separate answer to the complaint of the above named plaintiff respectfully shows to this Court that he denies each and every allegation of said complaint except as hereinafter admitted, and defendant WM. T. HENRY further answering denies that said plaintiff is the owner in fee and entitled to the possession of said South West quarter of Section Seven (7), Town Five, Range Three East in Iowa County Wisconsin, and denies that said plaintiff has within the past two weeks or at any time made valuable improvements on said land, and in that behalf said defendant charges and admits that one CHARLES S, STEPHENSON is the owner in fee simple and entitled to the possession of said land, that CHARLES S. STEPHENSON has been the owner and in actual possession of said land ever since the 8th day of May, A. D. 1859, and that the said CHARLES S. STEPHENSON and his grantors and the parties through which he claims title have been the owners in fee simple and in the actual possession of said land and premises ever since the 24th day of July A.D. 1847. And said defendant W.T. HENRY further answering said complaint, admits that he has acted as agent for said CHARLES S. STEPHENSON for a great number of years in collecting rents from and paying taxes due on said land and as agent for said STEPHENSON as aforesaid, this defendant has been in the actual possession of two hundred acres of land, of which the above is part, ever since the year A.D.1856. Said defendant W.T. HENRY admits that as agent for said STEPHENSON, he did on or about the 21st day of October _________________________and exist a dwelling house thereon and did then and there lease said land and dwelling house to said defendant JOHN POQUETTE who immediately on said 21st day of October A.D. 1871, entered into possession of said dwelling house as the tenant of said owner CHARLES S. STEPHENSON, and defendant denies that he has ever broke or entered the premises of said plaintiff or in any manner trespassed upon the property of said plaintiff and defendant denies that said plaintiff is the owner or even in possession of said premises, and in that behalf, defendant charges and alleges that on the 23rd day of October A.D.1871, said plaintiff and one HUGH CONNOUGHTON, the agent and servant of said plaintiff with force and arms broke and entered said dwelling house and cut, injured and defaced said dwelling house and then and there threatened to arrest said JOHN POQUETTE or any other tenant that this defendant should put into said dwelling house, and that by means of said threats and acts then and there maid and done by said plaintiff, this defendant has been injured and delayed in his work at improving said land and damaged in the sum of two hundred dollars, and defendant further charges and alleges that said Plaintiff with force and arms continues to trespass upon said premises and continues in the most unlawful manner to threaten and arrest any tenant this defendant puts upon said land to the great injury and damage of this defendant. Wherefore, this defendant, the said WILLIAM T. HENRY prays the judgement of this court that said plaintiffs action may be dismissed, and that defendant may have judgement ______________, and the defendant further alleges that the Tax Deed under, by and through which plaintiff claims title to said land is dated Feb. 3rd A.D. 1868, and executed by the Clerk of the Board of Supervisors of said Iowa County to one C.R. MOFFETT, and defendant alleges that said C. R. MOFFETT never obtained or attempted to obtain possession of said land under said Tax Deed and that more than three years had expired from the date of said Tax Deed before this action was commenced, and this defendant pleads the Statute of limitations against said Tax Deed, and hereby claims all of the advantages and benefits that he is entitled to by reason of any and all statutes of limitations applicable to the said Tax Deed. __________funded and also for his damages amounting to the sum of Two Hundred Dollars and defendant also prays for an order of this Court enjoining, Commanding and restraining said plaintiff, his agents or servants from entering upon said premises or any part thereof or in any manner meddling with or interfering with the said land and premises and said dwelling house until the further order of this Court, and that defendant may have such other relief as may be just and equitable. HENRY, Th_____th, attorneys for WILLIAM T. HENRY State of Wisconsin, Iowa County WILLIAM T. HENRY, the defendant above named being duly sworn and deposed and says that he has read the above answer and knows the contents thereof, and that the same is true of his own knowledge except as to those matters stated in information and belief as to those, he believes it to be true. Subscribed and sworn to before me Oct.23, 1871 WM. T. HENRY G. W. HENRY, Notary Public, Iowa County Wisconsin (Geo.)? State of Wisconsin Iowa County Circuit Court ALEX WILSON against WILLIAM T. HENRY, JOHN POQUETTE, JOHN M. SMITH Iowa County} WILLIAM T. HENRY, one of the defendants above named, being duly sworn, deposes and says that as agent for one CHARLES S. STEPHENSON, this deponent has been in the actual ___ possession of the two hundred acres of land, of which land described in said complaint is ____ for a great number of years to wit, ever since the year A.D. 1856, collecting rents and paying taxes on said land, that said Southwest quarter of Section Seven, Town Five, Range Three East is Mineral land and contains some valuable diggings now being worked by different parties: that this deponent as agent for said STEPHENSON has been collecting rents from said diggings ever since said year A.D. 1856, and deponent further says that on the 21st day of October A.D. 1871, he finished erecting a dwelling house on said land and placed a tenant therein for the purpose of improving said land and collecting the rents therefrom, this deponent further says on information and belief that said CHARLES S. STEPHENSON is the owner in fee simple of said land. And deponent further says that said STEPHENSON and his grantors have been in possession of said land ever since the 24th day of July A.D. 1847, and deponent denies that he ever attempted to dispossess plaintiff of said land and deponent further says in information and belief that on the 23rd day of October A.D. 1871, said plaintiff ALEX WILSON assisted by one HUGH CONNOUGHTON with force and arms, broke and entered the dwelling house situated on said premises with intent to injure and defraud said STEPHENSON and with intent to dispossess said STEPHENSON by force and arms, and continuing __________________________. State of Wisconsin Iowa County Circuit Court ALEX WILSON against WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH The defendant J.M. SMITH for his separate answer to the complaint of the Plaintiff in above Entitled action respectfully shows to this Court that he denies each and every allegation of said complaint and defendant specially and specifically denies that he or his agents did in the 21st day of October 1871 break and enter upon the land and premises described in the complaint and denies that he ever entered upon said premises or attempted to take possession thereof, and denies that he ever attempted to, or ever threatened to take forcible possession of said premises, and denies specifically each and every allegation of said complaint, wherefore he prays that the above action may be dismissed so far as it relates to this defendant and that the defendant may have judgement against said plaintiff for his costs in this behalf expended. J.M. SMITH Atty. Per se State of Wisconsin Iowa County} J.M. SMITH, the above named defendant being duly sworn, deposes and says that he has heard read the above answer signed by him, and knows the contents thereof, and that the same is true of his own knowledge except as to matters stated in information and belief, and as to those, he believes it to be true. Subscribed and sworn to, before me October 24th, A.D. 1871} J.M. SMITH GEO. HENRY, Notary Public Iowa County, Wisconsin State of Wisconsin Iowa County Circuit Court ALEX WILSON against WILLIAM T. HENRY, JOHN POQUETTE, JOHN M. SMITH The defendant JOHN POQUETTE for his separate answer to the Plaintiffs complaint in above action respectfully shows to this Court that he denies each and every allegation of said complaint except as hereinafter admitted. And defendant further answering, denies that he has any information sufficient to form a belief as to whether Plaintiff is the owner in fee simple of the tract of land described in the complaint, and demands that Plaintiff make proof of his said title, and defendant admits that on or about the 21st day of October A.D. 1871 he did at the request of his said codefendant WM. T. HENRY, take possession of a dwelling house on said premises, and defendant still claims to be in possession of said dwelling house, but defendant denies that he took possession of said premises with force and arms, and denies that he has in any manner injured said Plaintiff, and defendant denies that said Plaintiff has made any improvements in said land, except to dig some postholes, wherefore he prays that said action may be dismissed so far as this defendant is concerned and that he may have judgement against Plaintiff for his costs. J.M. SMITH, Atty. for defendant, JOHN POQUETTE State of Wisconsin Iowa County} JOHN POQUETTE, the defendant above named being duly sworn, deposes and says that he has heard read the above answer signed by him and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated as information and belief, and as to those, he believes it to be true. Subscribed and sworn to, before me, October 23, A.D. 1871. JOHN (his mark) POQUETTE ALEX WILSON vs WM. T. HENRY action commences Oct. 1871 The Southwest quarter of Section 7, Town 5 North, Range Three East was patented to ABRAHAM TUTTLE, a soldier in the War of 1812, Land _____ S27.444 having been issued to said TUTTLE, located upon said land. The patent is dated 3 Sept. 1847. After the issue of the warrant, vis. on the 24 June 1846, TUTTLE gave a letter of Attorney to BERNHARDT HEUER, and another authorizing either of them to locate his warrant upon any vacant government land, and to receive the patent, and in his, TUTTLE’s, name, to sell the land and execute a conveyance therefor to the purchaser. On Sept.1, 1847, BERNHARDT HEUER, as attorney in fact for ABRAHAM TUTTLE, conveyed this tract of land to PASCHAL BEQUETTE, and by direct and _____ conveyance from BEQUETTE, the same land was conveyed to CHARLES S. STEPHENSON on the 8 May, 1857; the alleged trespasses for which the plaintiff sues were done by the defendant HENRY acting as the agent of said STEPHENSON. On the 3rd Feb. 1868, the County of Iowa conveyed the above named tract of land to C.R. MOFFATT for a non-payment of taxes in the year 1857, tax sale in 1858. This deed was recorded the same day. On the 15 April, 1868 C.R. MOFFETT by quit claim conveyed the land to the plaintiff ALEXANDER WILSON. The defendant HENRY, as the agent of CHARLES S. STEPHENSON, on or about the 21st October 1871, entered ____________________-right and did acts which will render him liable as a trespasser, if the plaintiff WILSON was the legal owner of the land at the time. The deed from TUTTLE by BERNHARDT HEUER, his attorney in fact, to PASCHAL BEQUETTE, dated Sept. 1st, 1847 has been declared to be wholly void by the Supreme Court under an act of Congress that avoided all conveyances made by a soldier who located a land warrant which conveyances bore date before the date of the patent. The conveyance to BEQUETTE is dated Sept. 1, 1847. The date of the patent to TUTTLE is 3 Sept. 1847. The deed from TUTTLE to BEQUETTE being void, it follows that STEPHENSON claims under BEQUETTE obtains no legal title by virtue of conveyances depending upon BEQUETTE title alone. But notwithstanding the invalidity of BEQUETTE title and that of all persons claiming under him, it may be that STEPHENSON acquired a perfect title under the statute of limitations (If BEQUETTE or those claiming under him in good faith went into the actual occupancy of the land and continued such occupancy for ten successive years, such possession being exclusive, open and so notorious that all persons having an interest or claim upon the land must be presumed to have known of it, and that they claimed under their written conveyance as against all other persons; such occupancy being for the purposes of mining, or other ordinary use to which land may be applied by the ordinary industries of the country, then the title derived from BEQUETTE would become perfected in ____ hereon would be entitled to the benefit of such title.) (But it is not necessary in this case for the (failed to photocopy page 5) ......conveyance to BEQUETTE and direct and _____ conveyances from him till they reached the defendant's principal, STEPHENSON. If you find that STEPHENSON or his agent on or after the reading of the tax deed, was in the actual possession of the land within 5 years next after reading the tax deed, claiming the same under conveyance from BEQUETTE in good faith, this possession avoids the plaintiffs tax title.) (In such case the plaintiff in respect to STEPHENSON or his agent would be a mere squatter(?) without any title, and can bring no action for trespass against the defendant acting as such agent.) This action was commenced by the plaintiff more than three years after the reading of the tax deed under which he claims. (The tax deed becomes void as to the conveyance of title if the party claiming under it _____ the party claiming in good faith to be invested with the government title, to (lost the last line on the photocopy)________of the land at anytime within the three years next after the recording of the tax deed. In such a case, the claimant under the tax deed should bring his action ejectment, or he forfeits the absolute title that his tax deed initially conveyed.) You may inquire what must be the character of the possession which will avoid the tax deed to MOFFATT and that of the plaintiff claiming under him. In answer I will say that if STEPHENSON or his agent or tenants openly occupied the land and mined thereon for the purpose of obtaining lead ore for any part of the three years next after reading of the tax deed, this will bar the title under such deed; and if the land was open for mining to all miners who might chose to occupy it for their purpose, paying the customary dues (and miners did so mine on the land) their occupancy should be regarded(?) as the occupancy and the mining of STEPHENSON whose agent, the present defendant HENRY is -- in such case, your verdict must be for the defendant. But if you find the land was vacant and unoccupied by any person under the authority or permission or consent of STEPHENSON or his agent for the three years next, after the recording of the tax deed, your verdict should be for the plaintiff. WILSON vs HENRY, et al} 1. The evidence offered by the defendants fails to show that STEPHENSON ____m they seek to justify their acts done on the land) was the owner thereof, so far as the record title is concerned at the time this action was commenced, or at the time the said acts were done, but it does show that at that the owner of the record title, was one NICHOLS who derived title under ABRAHAM TUTTLE, the original patentee, or TUTTLE himself. [Given] 2. The defendants, having failed to establish the record title in STEPHENSON, in order to sustain their defense, they must show that STEPHENSON, under whom they were acting, was nevertheless the former owner of the land. That is to say that he had a title to the land which would be good if not cut off by the tax title, or which became good before this action was commenced, or the acts hereon in complained of, were done. [Not given] (The plaintiff excepts to the refusal of the court to give this instruction in charge to the jury. Oct.7, 1875-CARTER for pff). 3. NICHOLS, being then the owner of the second title to the land in question, STEPHENSON must, in order to be considered the owner, or the former owner as against the plaintiffs tax title, have succeeded in overthrowing in some way, TUTTLE's or NICHOL's record title. [Not given] (The plaintiff excepts to the refusal of the court to give this instruction in charge to the Jury. Oct. 7, 1875 CARTER for plff) 4. To accomplish this, the defendants must have established to your satisfaction by the testimony, that STEPHENSON or those claiming under him, went into actual possession of the land claiming title thereto, under the deed from BEQUETTE, and remained in such possession for ten years continuously at some time before the commencement of this action and after the date of the deed from BEQUETTE, and such possession must have been open, notorious and without interruption. [not given] (The plaintiff excepts to the refusal of the court to give this instruction in charge to the jury, Oct.7, 1875. CARTER for Plff) 5. If the Jury finds that within the three years next succeeding the recording of the tax deed, the Plaintiff by himself or his tenants took peaceable actual possession of the land in question and was not disturbed in his actual possession, but was treated by STEPHENSON and his agents as in actual possession and retained such actual peaceable possession from that time till the expiration of the said term of three years, and was so treated and recognized during that time, he was not bound to commence any action to prevent the ______ of the Statute of Limitations against his tax deed, provided that he so obtained and retained such peaceable actual possession for a reason ________lines not photocopied at bottom of page _____________________ those claiming against his tax deed to bring suit against him to try the question of title. [Not given] (The Plaintiff, by his counsel, excepts to the refusal of the Court to give this instruction in charge, to the Jury. Oct. 7, 1875. CARTER for Plff) ________top line cut off in photocopy________________ of Iowa County vs WILLIAM T. HENRY and all(?) no (?) other defendants Wisconsin And now comes the said Plaintiff in his own proper person and by W.E. CARTER, his attorney and moves the Court now here upon the minutes of the Court to set aside the verdict of the jury in this cause and grant a new trial thereof for the reasons following, that is to say: 1st. Because the Court erred in rejecting testimony offered on the trial of this cause on the part of the Plaintiff. 2nd. Because the Court erred in admitting in evidence before the Jury on the trial of this cause testimony offered by the defendants and objected to by Plaintiff's counsel. 3rd. Because the Court erred in refusing to give in charge to the Jury, the instructions asked by Plaintiff's counsel. 4th. Because the Court erred in its general charge to the Jury. 5th. Because of other errors apparent on the face of the record. Oct.7th, 1875 ALEXANDER WILSON, plff per se, and W.E. CARTER, his attorney ALEX WILSON vs. WILLIAM T HENRY et al} State of Wisconsin Iowa County Circuit Court October Term 1875 The motion for a new trial hearing come on this day to be heard upon the various grounds alleged said motion and the court being sufficiently advised thereon. It is ordered that said motion for a new trial be and the same hereby overruled and a new trial is denied. Dated October 20, 1875 by the Court. J.T. MILLS, Judge To which order and ruling the plaintiff by his counsel excepted to the whole part thereof. Dated October 20, 1875. ALEX WILSON, atty. per se. State of Wisconsin Iowa County Circuit Court ALEX WILSON, plaintiff, against WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH, defendants The above entitled actions having come on for trial in due course, and a jury having been duly sworn to try the issues found in said action, and after hearing the evidence introduced for the Plaintiff and defendants in said actions, and the arguments of Counsel for the respective parties therein, the Court having duly charged and instructed the said jury, and the jury on the 7th day of October, A.D. 1875 having retired to their room for consultation and thereupon returned into said Court with the following verdict to wit: "We, the jury find for the defendants." It is therefore on motion of HENRY and SMITH attorneys for said defendants hereby ordered and adjudged that said plaintiff take nothing by his said action. That said action be and the same hereby is dismissed, and it is hereby further ordered and adjudged that said defendants do have and recover of and from said Plaintiff, their costs in their half expended amounting to the sum of ___ Dollars, and that Execution issue therefore. Dated October 20th, A.D. 1875. By the Court. J.T. MILLS, judge State of Wisconsin in Supreme Court, August Term A.D. 1876 Appeal from Iowa County Circuit Court ALEX WILSON, appellant against WILLIAM T. HENRY, JOHN POQUETTE, and JOHN M. SMITH, respondents: 1. This is an action of trespass brought by said ALEX WILSON, vs said WILLIAM T. HENRY, JOHN POQUETTE, and J.M. SMITH, in the Iowa County Circuit Court. The summons was in the usual form and was served on the defendants on the 23rd day of October A.D. 1871 and the complaint of the Plaintiff was in the words and figures following, to wit: 2.The above named plaintiff complains and alleges that he is owner in fee and entitled to possession and in actual possession of the following described real estate situate, lying and being in Iowa County, State of Wisconsin and more particularly described as follows to wit: The South West quarter of Section no. seven (7), Township no. five (5), range no. three (3) East and that within the past two weeks said plaintiff has made valuable improvements thereon. This plaintiff further shows that said defendant did either personally or by or through their agents, on the 21st day of October A.D. 1871, break and enter upon said premises and attempt to take possession thereof and did great damage and injury to said premises by treading down the grass, and cutting up the grounds with wagons and encumbering said premises with lumber and other materials, rendering said premises unfit for cultivation, whereby said plaintiff has been damaged in the sum of one hundred dollars. 3.This plaintiff further alleges upon information and belief that said defendants intend to dispossess the plaintiff of said above described premises with force and arms, and that they have threatened to take possession of said premises, and thereby do plaintiff irreparable injury and said defendants are procuring men to go out to said premises and thereby greatly disturb and damage this plaintiff and hinder the peaceful occupation of said premises. 4. Wherefore said plaintiff prays judgement against said defendants for the sum of one hundred dollars and also, further prays that said defendants, each and all of them, their agents, attorneys and all others acting in and or assistance of said defendants, be commanded and strictly enjoined from again entering upon said premises or any part thereof or from in any manner _____ meddling with this plaintiff's peaceable occupation of all and every part of said premises until the further order of this court, and for such other and further relief as shall be just and equitable. ALEX WILSON. State of Wisconsin Iowa County} ALEX WILSON being duly sworn, says that he is plaintiff in above entitled action, that he has read the foregoing complaint, and knows the contents thereof, and that the same is true of his own knowledge except as to the matters therein stated upon his information and belief, and as to those matters, he believes it to be true. 5. Subscribed and sworn to before me this 23rd day of Oct. A.D. 1871} ALEX WILSON CALVERT SPENSLEY, Circuit Court Commissioner, Iowa County, Wis. This plaintiff also filed his affidavit being date Oct. 23rd, 1871, setting forth the facts alleged in his bill of complaint, and on said day obtained an order of said Court sign by said CALVERT SPENSLEY, Circuit Court Commissioner, enjoining and restraining said defendants from entering upon said tract of land or in any manner interfering with the possession thereof by the plaintiff. The said defendants duly appeared and filed their separate answers to said complaint in words and figures following: 6. The defendant J.M. SMITH for his separate answer to the complaint of the plaintiff in above entitled action respectfully shows to this court that he denies each and every allegation of said complaint, and defendant specifically denies that he or his agent did on the 23rd day of October A.D. 1871, break and enter upon the land and premises described in the complaint, and denies that he ever entered upon said premises or attempt to take possession thereof, and denies that he ever attempted to or even threatened to take forcible possession of said premises , and denies specifically each and every allegation of said complaint. 7. Wherefore he prays that the above action may be dismissed so far as it relates to this defendant and that this defendant may have judgement for his costs in this behalf expended. J.M. SMITH, "Attorney per se" State of Wisconsin, Iowa County} J.M. SMITH, the above named defendant being duly sworn, deposes and says that he has heard read the above answer signed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated on information and belief, and as to those, he believes it to be true. Subscribed and sworn to before me, October 24th, A.D. 1871} J.M. SMITH GEORGE HENRY, Notary Public, Iowa County, Wis. 8.The defendant JOHN POQUETTE, for his separate answer to the plaintiff's complaint in above action, respectfully shows to the Court, that he denies each and every allegation of said complaint, except as hereinafter admitted, and defendant further answering, denies that he has any information sufficient to form a belief as to whether plaintiff is the owner in fee simple of the tract of land described in the complaint, and demands that plaintiff make proof of his said title, and defendant admits that on or about the 21st day of October A.D. 1871, he did at the request of his codefendant, WILLIAM T. HENRY, take possession of a dwelling house on said premises, and defendant still claims to be in possession of said dwelling house, but defendant denies that he took possession of said premises with force and arms, and denies that he in any manner injured said plaintiff, and defendant denies that said plaintiff has made any improvements in said land except to dig some postholes. 9. Wherefore he prays that said action be dismissed so far as this defendant is concerned, and that he may have judgement against plaintiff for his costs. J.M. SMITH, attorney for defendant JOHN POQUETTE State of Wisconsin, Iowa County}JOHN POQUETTE 10.The defendant above named, being duly sworn, deposes and says that he has heard read the above answer signed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated on information and belief, and as to those he believes it to be true. Subscribed and sworn to before me, Oct.23rd A.D. 1871. JOHN (his mark) POQUETTE GEORGE HENRY, Notary Public, Iowa County, Wis. Answer of WILLIAM T. HENRY 11. The defendant WILLIAM T. HENRY for his separate answer to the complaint of the above named plaintiff respectfully shows to this court that he denies each and every allegation of said complaint except as herein after admitted, and defendant WILLIAM T. HENRY further answering, denies that said plaintiff is the owner in fee and entitled to the possession of said Southwest quarter of section seven (7), Town five (5), range three (3) East, in Iowa County, Wisconsin, and denies that said plaintiff has within the past two weeks or at any time made valuable improvements on said land, and in that behalf said defendant charges and admits that one CHARLES L. STEPHENSON is the owner in fee simple and entitled to the possession of said land. That said CHARLES L. STEPHENSON has been the owner and in the actual possession of said land ever since the 8th day of May A.D. 1854, and that the said CHARLES L. STEPHENSON, and his grantors and the parties though whom he claims title have been the owner in fee simple and in the actual possession of said land and premises ever since the 24th day of July, A.D. 1847. And said defendant, WILLIAM T. HENRY, further answering said complaint admits that he has acted as agent for said CHARLES L. STEPHENSON for a great number of years in collecting rents from and paying taxes due on said lands, and as agent for said STEPHENSON as aforesaid, this defendant has been in the actual possession of two hundred acres of land of which the above is a part ever since the year A.D. 1856. And said defendant WILLIAM T. HENRY admits that as agent for said STEPHENSON, he did on or about the 21st day of October A.D. 1871, enter upon the said premises and erect a (13) dwelling house thereon and did then and there leave said land and dwelling house to said defendant JOHN POQUETTE, who immediately on said 21st day of October A.D. 1871 entered into possession of said dwelling house as the tenant of said owner CHARLES L. STEPHENSON, and defendant denies that he has ever broke or entered the premises of said plaintiff or in any manner trespassed upon the property or premises of said plaintiff, and defendant denies that said plaintiff is the owner or ever in possession of said premises, and in that behalf defendant charges and alleges that on the 23rd day of October A.D. 1871, said plaintiff and one HUGH CONNAUGHTON, the agent and servant of said plaintiff, with force and arms broke and entered said dwelling house, and (14). cut, injured and defaced said dwelling house, and then and there threatened to arrest said JOHN POQUETTE, or any other tenant that this defendant should put into said dwelling house, and that by means of said threat and acts then and there made and done by said plaintiff, this defendant has been injured and delayed in his work of improving said lands and damaged in the sum of two hundred dollars. And defendant further charges and alleges that said plaintiff with force and arms continues to trespass upon said premises, and continues in the most unlawful manner to threaten to arrest any tenant this defendant puts upon said land to the great injury and damage of the defendant. (15). And this defendant further alleges that the Tax Deed under, by and through which plaintiff claims title to said land is dated February 3rd, A.D. 1868, and executed by the clerk of the Board of Supervisors of said Iowa County to one C.R. MOFFETT, and defendant alleges that said C.R. MOFFETT never obtained or attempted to obtain possession of said land under said Tax Deed, and that more than three years had expired from the date of said Tax Deed before this action was commenced, and this defendant pleads the Statute of Limitations against said Tax Deed and hereby claims all of the advantage and benefit that he is entitled to by reason of any and all statute of limitations applicable to said Tax Deed. 16.Wherefore this defendant, the said WILLIAM T. HENRY prays the judgement of this court, that said plaintiff's action be dismissed, and that defendant may have judgement against said plaintiff for his costs in this behalf expended, and also for his damages amounting to the sum of two hundred dollars, and defendant also prays for an order of this court, enjoining, commanding and restraining said plaintiff, his agents or servants from entering upon said premises or any part thereof, or in any manner meddling with or interfering with said land and premises and said dwelling house, until the further order of this court and that defendant may have such other and further relief as may be just and equitable. HENRY SMITH, attorney for WILLIAM T. HENRY. State of Wisconsin, Iowa County} (17) WILLIAM T. HENRY, the defendant above named, being duly sworn deposes and says that he has read the above answer and knows the contents thereof and that the same is true of his own knowledge, except as to those matters stated upon information and belief, and as to those, he believes it to be true. Subscribed and sworn to before me, October 23rd, 1871} WM. T. HENRY GEO. HENRY, Notary Public, Iowa County, Wis. (18) The said WILLIAM T. HENRY also filed his affidavit attached to said answer, bearing date Oct.23rd, 1871, setting forth substantially the same state of facts alleged in his answers, which affidavit was filed for the purpose of obtaining an injunction against the plaintiff restraining and enjoining him from entering upon said land, but no injunction was applied for by the defendant, and on the 11th day of November A.D. 1871 the plaintiff served his reply to said answer of WILLIAM T. HENRY, which reply was in words and figures following to wit: State of Wisconsin-Iowa County Circuit Court ALEX WILSON Plaintiff against WM. T. HENRY, JOHN POQUETTE, and JOHN M. SMITH, defendants (19) The plaintiff for his reply to the defendant's, WILLIAM T. HENRY answer, denies that CHARLES L. STEPHENSON is the owner in fee simple of the premises described in said answer, and denies that he is entitled to the possession of said land, and upon information and belief, denies that said CHARLES L. STEPHENSON has been in the actual possession of said land ever since 8th day of May A.D. 1854, or ever since July 24th, 1847, and denies upon information and belief that said WILLIAM T. HENRY as agent for said STEPHENSON or in any other capacity, has been in the actual possession of said land ever since the year A.D. 1856, and in this behalf, this plaintiff further alleges that on the 12th day of January 1870, the said CHARLES L. STEPHENSON commenced an action in the Circuit Court in and for Iowa County against this plaintiff to recover possession of these same lands, and said WILLIAM T. HENRY was one of the attorneys for said STEPHENSON in that suit. The complaint in said action is as following to wit: State of Wisconsin-Iowa County Circuit Court CHARLES L. STEPHENSON, Plaintiff, against ALEXANDER WILSON (21). The complaint of the above named plaintiff respectfully shows to the court that he has an estate and interest in fee simple in ____ to the following described premises, situated in the County of Iowa and state of Wisconsin, and more particularly described as follows to wit: The southwest quarter of section no. seven (7) in township no. five (5), north of range three (3) east. That he is the owner in fee simple absolute of said premises, and that he is entitled to the possession thereof, and that the said defendant unlawfully withholds the possession thereof from this plaintiff to his damage in the sum of five hundred dollars, wherefore the said plaintiff demands judgement against the defendant that he recover possession of said premises and for the 22 said sum of five hundred dollars for unlawfully withholding the same together with the cost of this action, and that said plaintiff may have such other and further relief as shall be just and proper. Dated January 10th, 1870, HENRY and SMITH, attorneys for Plaintiff. That this plaintiff denies each and every material allegation in said complaint except he admitted the fact that he was in possession of said premises, that the action was at issue and pending in said court until, on or about the 11th day of October, 1871 when said plaintiff CHARLES (23). L. STEPHENSON, by his attorney, HENRY SMITH withdrew said complaint and said action was dismissed, that the plaintiff relied upon the admission of the possession of said premises in this plaintiff in said complaint--contained and endeavored for several terms of court to force said action to a trial, but could not do it. The said CHARLES L. STEPHENSON never being ready for trial, that this plaintiff was desirous of trying the validity of said STEPHENSON's claim to said premises, and was ready each and every term of court to try the issue in said action. This plaintiff further shows that the Tax Deed mentioned and described in said defendant's answer is in due form and was duly recorded in the office of the Registry of Deeds of Iowa County on the 3rd day of February 1868, and that the grantee in said deed, C. R. MOFFETT, on or about the 15th day of April 24. 1861, by a good and sufficient deed duly executed and acknowledged, conveyed said premises to this plaintiff, whereby the plaintiff became the owner in fee of said premises and in the possession thereof, and the plaintiff further shows upon information and belief that at the date of the recording of said Tax Deed said lands were unoccupied and unimproved, and that said CHARLES L STEPHENSON or the said defendant WILLIAM T. HENRY or both of them have not been in the actual continued adverse possession of said premises, as alleged in said defendant's answer, for three years next succeeding February 3rd 1868, nor have they had such possession within the meaning of section seven (7) of Chapter (138) one hundred and thirty eight of the revised Statutes for the three years next succeeding the date last mentioned, and they have not paid the taxes for each of (25) the three years since said date, and have not held said premises adversely to the rights and claims of this Plaintiff during said period, and that said STEPHENSON and his agents and attorneys are barred and precluded from claiming any interest or title to said premises, and the plaintiff denies that he has in any form or manner injured the defendant, WILLIAM T. HENRY or hindered him in making improvements on any land belonging to him or to his clients, and denies that he has ever trespassed upon , or in any manner damaged any land belonging to said CHARLES L. STEPHENSON, but has simply tried in the manner prescribed by law to protect his own property. Wherefore he asks judgement according to the prayer of his complaint. ALEX WILSON, Attorney per se (26). State of Wisconsin, Iowa County} ALEX WILSON being duly sworn says he is plaintiff in the above entitled action and has read the foregoing reply to defendants answer and knows the contents thereof, and that the same is true of his own knowledge except as to the matters therein stated upon information and belief, and as to those matters, he believes them to be true. Subscribed and sworn to before me on this 9th day of November, 1871, ALEX WILSON CYRUS LANYON, Notary Public for Wisconsin, residing in Iowa County (27) State of Wisconsin-Iowa County Circuit Court ALEXANDER WILSON Plaintiff against WILLIAM T. HENRY, JOHN POQUETTE and JOHN M. SMITH, Defendants} Be it remembered that at a term of the Circuit Court in and for Iowa County, begun and held at Dodgeville in said county on the 5th day of October, 1875, to wit: The said cause came on for trial upon the complaint of the plaintiff and the separate answers of (28) each of the defendants and the reply of the plaintiff to the answer of the defendant WILLIAM T. HENRY, and upon the trial of said issue before said court, and a good and lawful jury duly drawn, empanelled and sworn, the plaintiff offered in evidence a Tax Deed as follows to wit: To all whom these presents shall come greeting: Whereas C.R. MOFFATT (assignee of Iowa County) has deposited in the office of the Clerk of the County Board of Supervisors of the County of Iowa in the state of Wisconsin, a certificate of the County Treasurer of said county whereby it appears as the fact is--that the following described piece or parcel of land lying and being situated in the County of Iowa to wit: The southwest quarter of section no. seven (7) in (page 29) township no. five (5) north of range no. three (3) east of the fourth principal meridian for the nonpayment of taxes sold by the County Treasurer at public auction at Mineral Point in the County of Iowa on the 28th day of September in the year of our Lord one thousand eight hundred and fifty eight, to the said Iowa County of whom C.R. MOFFATT is assignee for the sum of nineteen dollars and seventy three cents in the whole, which sum was the amount of taxes assessed and due and unpaid on said tract of land together with the costs and charge of such sale due therewith at the time of making such sale, the whole of which sum of money has been paid by the aforesaid purchaser, and whereas it further appears as the fact is that the owner or claimant of said land has (page 30) not redeemed from such sale, the land which were sold as aforesaid and said lands are now unredeemed from such sale whereby said described lands have become forfeited and said purchaser, his heirs or assignees are entitled to a conveyance thereof. Now, therefore, know all men by these presents, that the County of Iowa in said state, and the state of Wisconsin in consideration of the said sum of money aforesaid, and the premises and in conformity to law, hath and hereby doth give, grant and convey the tract of land above described together with the hereditaments and appurtenances to the said C. R. MOFFETT and to his heirs and assigns to their sole use and benefit forever. In testimony whereof, I, GEORGE H. OTIS, the (page 31) clerk of the Board of Supervisors of the County of Iowa, have executed this deed pursuant and in virtue of the authority in me vested by the Statutes of the State of Wisconsin and for and on the belief of the said state and of the County of Iowa aforesaid, have herewith subscribed my name officially and affixed the seal of said board of County supervisors at the village of Dodgeville in said County of Iowa this 3rd day of February in the year of our Lord one thousand eight hundred and sixty eight. GEORGE H. OTIS, Clerk of the board of supervisors (official seal) Iowa County, Wis. Done in presence of GEORGE MIELK (?). ROBERT G. OWNES (?) (page 32) State of Wisconsin, County of Iowa} On this 3rd day of February A.D. 1868, personally appeared before me, the undersigned the within named GEORGE H. OTIS, Clerk of the Board of Supervisors in and for the County aforesaid, to me well known, who acknowledges the within and foregoing deed of conveyance to be the____ act and deed of said county and state for the uses and purposes named. MATHEW BENNETT, Notary Public for Wisconsin residence in Iowa County (notarial seal). 33 Said deed had upon it the certificate of the Register of Deeds to the effect that the same said deed was recorded on the 3rd day of February, 1868 in Vol. 14, of deeds on page 242. To the reading of the deed in evidence, the defendant's counsel objected generally and specifically for the following reasons: 1st. That the deed was void for the reason that no authority in law was vested in the county Treasurer to sell the land for the nonpayment of taxes on the 28th day of September, 1858. 2nd. Said deed is not acknowledged according to law so as to be evidence for any purpose. 3rd. That the certificate of the Register upon the recorded deed in the Register of Deeds office shows that the deed was recorded on the 1st day of February, 1868, while the certificate of the Register on the back of the deed shows it was recorded February 3rd 1868. Which objection the said court then and there overruled and the defendants excepted to the said ruling of the court. (page 34). The defendants offered then to prove that on the 7th day of October 1873, day of the first trial of said action, CHARLES L STEPHENSON had deposited with the County Clerk of Iowa County, a sum sufficient to redeem the said land from said tax sale upon which said deed was made, that is to say nineteen and seventy three hundredths dollars and interest at 25 percent per annum from Sep.28th 1858, and all costs made subsequent to said sale by virtue and in pursuance thereof, for the use of the purchaser at such sale, his heirs or assigns, and in redemption of said land from such sale. The plaintiff consenting that said offer be then made (?) with the same effect as though offered with the defendants proofs as a part of the defense. The plaintiff's counsel objected to the proofs so offered and the said court sustained such objection and the defendant's (page 35) counsel thereupon excepted to the said ruling of the court; said tax deed was then read in evidence. The plaintiff's counsel then offered in evidence a quit claim deed of conveyance from the said C.R. MOFFATT to the plaintiff, dated 15th April, 1868 for the lands described in the tax deed, which deed was recorded on the 13th day of Nov. 1869. To the reading of which deed in evidence the defendant's counsel objected for the reason that the same was irrelevant. Which objection the Court overruled, and the defendant's counsel excepted to the ruling of the said Court. It is admitted that the defendant WM. T HENRY on or about the 21st day of October, 1871, entered upon said land and built a balloon frame one story house 12 x 14 feet thereon, and claimed the land for Mr. STEPHENSON and did injury to the amount of $1.00. ALEX WILSON, the plaintiff being duly sworn in his own behalf, testifies as follows: The land in question is rolling land suitable mainly for agricultural purposes and a little for mining in the southern extremity. The mining is confined to 4 or 5 acres in the southern extremity of the land and ____ that would be good agricultural land were it not for the "burrows". “The land is unimproved, uncultivated and unoccupied, and was so until October 1871, since the date of the tax deed. I went out October 6th, 1871 and set some men to work on the land digging postholes for a fence. This is the first occupancy I know any thing about.” “I never heard of DUKE SMITH diggings until Mr. HENRY testified in Court saying that a part of them was on this land.” Question-Have you at any time paid the taxes upon this land? Objected to by plaintiff as immaterial. Objection overruled and Plaintiff excepted. Answer-“I have not paid the taxes on this land since 1857, tax paid by some other person. C.R. MOFFATT knew nothing of the deed before it was recorded. MOFFATT authorized me to invest for him where it would be the most good.” Plaintiff then read in evidence the judgement roll in an action commenced by CHARLES L. STEPHENSON against the Plaintiff in this action, January 10th, 1870. Action was ejectment and the complaint is the same as that described in the Plaintiff's reply in this action (Folio?) 21 and the answer therein denied each and every material allegation in the complaint except the defendant therein admitted that he was in possession of the premises described in the said complaint. That on the 11th day of October 1871, said plaintiff CHARLES L. STEPHENSON withdrew said complaint and his said action was dismissed by an order of the Court bearing date October 11th, 1871. Cross Examination of ALEX WILSON: “I was County Judge of Iowa County from date of deed till 1870; C.R. MOFFATT was not present when the tax deed was made and did not know anything about it; MOFFATT had money to loan and asked me to make investments for him as I might find opportunities. He did not know about the deed when it was made. I do not know whether I had any of his money at this time; I paid for the deed and its record and bought the certificate from the county with my own money, except I may have had some of MOFFATT's money in my hands; Whether I had or not I cannot say; don't know that I saw MOFFATT that day; he never paid me back the money.” “I paid for the tax title; he did not like the investment; thought it might be attended with litigation and so I took it off his hands and he made me the quit claim deed; I did not take the title in the name of MOFFATT because of any law against a county judge taking tax title; I know of no such law; I have never paid any other tax on the land; I did not know who was the owner at the time I took the tax deed; I did not know Mr. HENRY was agent of the land until one year after; I did not then know the land included the DUKE SMITH diggings. I have no recollection that MATHEW BENNETT told me when I got deed that the land was CHARLES L. STEPHENSON's; he did tell me so some time after. I only went on the premises two or three times till Mr. HENRY told me who owned it, and that he was agent for the owner; there has been a good deal of mining done on the south end of this land, five or six acres only; that part of it on the hillside is only valuable for mineral purposes; the hollow is good grassland. HENRY first told me parties were digging on the land under him after the ejectment suit was commenced in January 1870; I don't know they were mining under him only he told me so; STEPHENSON has never written to me directly about this; he wrote to Col. COBB and he handed me the letter.” “I made STEPHENSON then a proposition to fix a price on the land, and I would pay him half the price and take the land, or I would take one half the price and deed it to him; I gave written lease to HOLMES and HILDRETH; I don't know their dates. I think it was about the time I was sued in the ejectment case; I never knew they were at the same time digging under HENRY; in 1871 Mr. WEST told me he had been digging there under HENRY; WEST told me he dug there in fall of 1870.” “HOLMES and HILDRETH were to pay rent but never paid any; HILDRETH told me there was two dollars rent my due but I let him off. WEST paid me $4.00 to $5.00 in winter 1871 and 1872 after the ejectment suit was commenced in the fall of 1871. He said he had been working on the land under HENRY. I never did any work on the land during three years after the record of the tax deed. I only went out occasionally to look at it. I have heard parties was working on it during that time.” “I went out Oct. 6th to take possession as soon as I heard the ejectment suit was to be dismissed; I wanted actual possession and to improve the farm; I should not have gone out if the ejectment suit had been tried. I never saw any one digging on the land until Oct. 20th, 1871; then saw a German whose name I do not know, at work. Then I dug from 100 to 150 postholes. Set about 100 posts, built about 15 rods of fence; this did not enclose any part of the land it is a fence on three sides of neighboring owner's; part of those posts were set before injunction was served upon me in the case of STEPHENSON vs. myself, now pending in the court. Part have been set since that time. This land is about 4 miles north of Mineral Point.” “I helped to remove this house from the land. Mr. HOLMES helped me remove it or a part of it; he tore down a part of it and took it away; did not injure the lumber more than was necessary, and left part of it standing when the injunction was served upon me. I saw sometime afterwards and it was all down. Don't know who took down the balance of it.” On redirect examination the plaintiff's counsel asked the witness: Would you have taken actual possession of the land in question if the ejectment suit had not been brought against you? To which question and the answering thereof the defendant's counsel objected and the court sustained the objection and the plaintiff excepted. The plaintiff then rested his case. ____first one or two lines cut off in photocopy _____ read in evidence a patent from the U.S. as follows: The United States of America. To all to whom these presents shall come greeting. Know ye that in pursuance of the acts of Congress appropriating and granting land to the late army of the U.S. passed on and since the 6th day of May 1812, ABRAHAM TUTTLE who was a private in the company commanded by Capt. RIPLEY of the 37th Reg't U.S. Infantry, having deposited in the general land office a warrant in his favor numbered 27,444. There is therefore granted by the U.S. unto the said ABRAHAM TUTTLE, the southwest quarter of Section seven in township five north of range three east of the fourth P.M. in the district of lands subject to sale at Mineral Point, Wisconsin Territory containing one hundred and sixty acres according to the official plat of the survey of said land, returned to the general land office by the survey in general; which said tract has been located in satisfaction of the above mentioned warrant in pursuance of the act of Congress approved 27th July 1842. To have and to hold the said quarter section of with the appurtenances thereof unto the said ABRAHAM TUTTLE and to his heirs and assigns forever. In testimony whereof, I James K. Polk, President of the U.S. of America have caused these letters to be made patent and the seal of the general land office to be herewith affixed. Given under my hand at the City of Washington in the 3rd day of September in the year of our Lord One thousand eight hundred and forty seven, and of the independence of the U.S. the seventy second. By the President James K. Polk By J. Knox Walker- Secretary Jos. S. Wilson, acting Recorder of the general land office ______. Recorded Vol.1, page 446 The defendant then offered in evidence the record from the office of the register of deeds of Iowa County, Wisconsin recorded Sept. 20, 1847 of a power of attorney as follows: Know all men by these presents that I, ABRAHAM TUTTLE of Waldo County in the State of Maine, and now sojourning in the city of Washington and district of Columbia have made, constituted and appointed, and by these presents do make, constitute and appoint WILLIAM C. LYON and BERNHARDT HEUER of Jefferson County in the territory of Iowa, or either of them my true and lawful attorneys or attorney irrevocable for one and in my name and for my use to locate a certain certificate issued to me out of the offices of the Commissioner of pensions of the United States on the 24th day of June in the year 1846 on a land warrant No. 27,444 under and by virtue of an act of Congress of the U.S. passed on the 17th day of July, 1842 entitled "an act to provide for satisfying clauses for bounty lands for military service in the late war with Great Britain and for other purposes; for one hundred and sixty acres and for me and in my name and for my use to ask, demand and receive from the land office of the Unite States, any patent or patents issued on such location as aforesaid and for me an in my name and for my use to grant, bargain, sell and convey the quarter section of land upon which said land warrant No.27,444 may be located to such person or persons, deed to, for, and upon such considerations as to my said attorneys or either of them may seem meet and proper, and further for one and in my name, and for my use to sign, seal and ________________ line missing _______________________ or conveyances with such covenants and warranties on my part as to my attorneys or either of them shall seem meet and proper, fully convey assure and assign all my estates right, title (?), interest, property claim and demand into and out of such quarter section of land which may be located ______ and by virtue (page 53). of said certificate issued to me out of the office of the commissioner of pensions of the U.S. on the 24th day of June in the year 1846 on said land warrant No.27,444 hereby ratifying and confirming and by those presents allowing whatever my said attorneys or either of them lawfully do in the premises as fully and completely as if I myself were personally present at the doing thereof. In witness whereof I have herewith set my hand and affixed my seal this 24th day of June in the year eighteen hundred and forty six. ABRAHAM TUTTLE (seal) Signed sealed and delivered in presence of B.B. FRENCH, WILLIAM W. STEWART (page 54) District of Columbia, Washington City} Be it remembered that on the 24th day of June in the year 1846 personally appeared ABRAHAM TUTTLE before us the subscribers, two Justices of the Peace and for the said county and acknowledged the foregoing letter of attorney or instrument of writing to be his act and deed. B.B. FRENCH-Justice of the Peace, WILLIAM W. STEWART-Justice of the Peace. United States of America Department of State} To whom all these presents shall come greeting. I certify that B.B. FRENCH and WM. W. STEWART whose names are subscribed to the paper hereunto annexed are now and were at the time of subscribing, the same Justices of the Peace for the county of Washington in the District of Columbia duly commissioned and that full faith and confidence are due to their acts as such respectively. In testimony, I, James Buchanon, Secretary of State of the United States have hereunto subscribed my name and caused the seal of the department of State to be affixed. Done at the city of Washington this 26th day of June A.D. 1846 and the Independence of the United States of America the seventieth. James Buchanon WM. HENRY Register To the reading of which record the Plaintiff counsel objected for the reasons: 1st. The Seal was affixed by the Justice of the Peace to their official signatures to the acknowledgement of said powers And 2nd. The acknowledgement of said power was insufficient in that it does not appear said ABRAHAM TUTTLE was known to the Justices taking such acknowledgement or that his identity was proven to them as the statute of the U.S. in such case made and provided requires. The court sustained such objection and the defendants counsel excepted thereto. ______(first line may be missing)____________ Q1. What is your age, name and present residence?: Ans.-“Name AUGUSTUS C. DODGE; am 60 years of age; live in Burlington, Iowa.” Q2.Are you acquainted with Plaintiff ALEX WILSON and defendant WM. T. HENRY or either of them, and how long have you known them? Ans. “I have known Mr. WILSON some years slightly, and WM. T. HENRY all his life.” Q3.Were you in June 1846 or at any time prior to that date, acquainted with the tract of land described as the southwest quarter of section seven (7) town five (5) and range three (3) east in Iowa County Wisconsin? Ans. “I have known the land in said description from 1827 to 1838 but do not recollect who occupied it or for what it was used.” Q.4 Were you in June 1846 or at any time prior to that date acquainted with ABRAHAM TUTTLE, WILLIAM C. LYON and BERNHARDT HEUER or either of them, and do you know whether they are now living? And if not living state as near as you can when they or either of them died. Ans. “BERNHERDT HEUER died August 1865 at Fairfield, Iowa. WILLIAM C. LYONS moved from Fairfield in 1851 or 1852 to California; do not know whether he is living or not nor do I know whether ABRHAM TUTTLE is living or not; have not heard of either of them for many years.” Q5. Do you know anything about a power of attorney given by ABRAHAM TUTTLE to WM. C. LYON and BERNHARDT HEUER on June 24th 1846? If yea, state all you know about it, whether it was executed, to whom given, for what purpose given, and whether the land described in Q.3 was conveyed by said power of attorney. Objected to by plaintiff. Ans. “I do know that about the 24th of June 1846, ABRAHAM TUTTLE executed a power of attorney to WM. C. LYON and BERNHARDT HEUER. The instrument was executed at Washington D.C. by said TUTTLE in my presence. It's purpose was to enable the said LYONS & HEUER or either of them to locate the warrant mentioned in the power of attorney upon some quarter section of the public land and also to enable them or either of them afterwards to convey the title to the land so located to whomsoever they; or either of them should see fit. I do not of my personal knowledge know whether the land referred to in said interrogatory three, was conveyed by virtue of said power of attorney or not, but verily believe it was.” Q6. Was said power of attorney ever in your possession? If yea, state as near as you can what became of it, what efforts you have made to find it, and whether you are able to produce it. Ans. “It was in my possession; placed in my hands by said Tuttle and was by me sent to said LYONS (page 61) & HEUER or one of them; both of them lived in Fairfield, Iowa; I have never seen it since. I have lately written to the administratrix her son, and to the attorneys of said HEUER deceased for the instrument but unable to obtain it; I made no application to LYON; know not where he was or whether he is living. I am wholly unable to produce it.” Q7. Have you a copy of said power of attorney? If yea, will _____(photocopy missing bottom line)______....________(missing the page with items 62 and 63 on it) _________ (64) possession and who had charge of it when you were absent from home upon official duties or otherwise? Ans. “I saw the power of attorney at Washington D.C; received it from said ABRAHAM TUTTLE and sent it to BERNHARDT HEUER; it was never at my house.” Q3. If you now have what purports to be a copy of said power of attorney, state when you first saw said copy and state if you know whether it is a copy of a copy or otherwise, and also state if you ever saw any other copy than this one hereto attached? Ans. “As before stated, I received two copies from the attorneys some days since; I believe it to be a copy of the original; I never saw a different copy.” (65) AUGUSTUS C. DODGE Taken, subscribed and sworn to before me by said AUGUSTUS C. DODGE, the 21st day of March 1873 Samuel K (?) Tracey, Commissioner. The defendant's counsel then offered in evidence against the said record of the said power of attorney in connection with the said deposition of A. C DODGE and the plaintiff's counsel objected thereto and the Court sustained the objection and the defendant's counsel excepted to the ruling of the Court. The defendant's counsel then read in evidence a second deposition of the said A. C. DODGE taken by the Plaintiff to wit: (66) Q1.What is your name, age and place of residence? Ans. My name is AUGUSTUS C. DODGE, age 60, Burlington Iowa. Q2. In your answer to the 6th direct interrogatory, propounds to you in taking your deposition in this action_____(top line missing?)____ you say "I do know that on or about June 24, 1846, ABRAHAM TUTTLE executed a power of attorney to WILLIAM C. LYONS and BERNHARDT HEUER- The instrument in question was executed at Washington D.C. by said TUTTLE in my presence- Its purpose was to enable LYON and HEUER or either of them to locate the warrant mentioned in the power of attorney upon some quarter section of the public lands and also to enable them or either of them afterwards to convey the title to the lands so located to whosoever they or either of them should see fit" __. Who were the subscribing witnesses to such power of attorney and are they or either of them, still living? Ans. “The subscribing witnesses were B.B. FRENCH and WM. W. STEWART, both of whom then resided in Washington, D.C. FRENCH was at the time of subscribing the power of attorney, the chief clerk of the house of Representatives of the U.S. I had known him as an employee of the house since 1840. He was afterwards Commissioner of Public Buildings and Grounds under Presidents Pierce, Lincoln and Johnson, and died during the administration of the latter's; STEWART was an under clerk of said house and do not know whether he is living or dead; I saw both of the subscribing witnesses subscribe the power of attorney and know their signatures to it are genuine.” Q3. Was said power of attorney from ABRAHAM TUTTLE to said WILLIAM C. LYONS and BERNHARDT HEUER executed for a valuable consideration-If yea state what consideration and all you know about it? Ans. “The power of attorney was voluntarily executed by said TUTTLE to said LYONS and HEUER for the purposes expressed in the instrument itself and no consideration was ever paid by them or either of them to said TUTTLE for the execution of said power of attorney either directly or indirectly to the best of my knowledge and belief; I do not know of TUTTLE ever receiving any money except from myself; I advanced him upwards of one hundred dollars to relieve his urgent necessities; he was aged, infirm and poor, but his respectability and merit were vouched for by members of Congress from the State of Maine of which he was a resident and from which he had gone to the War of 1812.” “ Q4. Was any consideration paid to ABRAHAM TUTTLE by WM. C. LYONS and BERNHARDT HEUER, or either of them or by any one for them or either of them for the making of said power of attorney-- If yea, what consideration was paid and when and by whom was it paid? Ans. “Not any to my knowledge.” Q5. Was any consideration paid to ABRAHAM TUTTLE by W C. LYONS and BERNHARDT HEUER or either of them or by any person for them or either of them for giving them or either of them the favor to locate a certain certificate issued by ABRAHAM TUTTLE out of the Office of the Commissioner of Patents of the U.S. on the 24th day of June 1846 on land warrant 27,444 under and by virtue of an act of Congress of the U.S. passed on the 27th day of July, 1842 entitled "An act to provide for satisfying clauses for bounty lands for military service in the late war with Great Britain and for other purposes" for 160 acres of land and for the power of receiving the patent or patents issued upon such location and for the power enabling them or either of them afterwards to convey the title to the lands so located to whomsoever they or either of them should see fit--if yea, what was the consideration paid and when and by whom was it paid. Ans. “Not to my knowledge.” Qs.6. Was any consideration paid to ABRAHAM TUTTLE by any person for assigning or disposing of the certificate issued upon the land warrant described in said power of attorney-if yea, what was the consideration paid, and when and by whom was it paid? Ans. “I can say nothing in answer to this interrogatory except what I have already stated in my answer to the third interrogatory.” Qs.7. When did you last see said power of attorney and in whose possession? Ans. “When I mailed it in 1846 (June) directed to said LYONS and HEUER at Fairfield, Iowa.” Cross Examination: Qs.1. State more fully the contents of the power of attorney referred to in the 1st interrogatory, stating when, where, by whom and to whom said power of attorney was made, whether to the grantees of the power jointly or severally, giving the language of the power as nearly as possibly in this regard. Also the act or acts authorized by the power in substance and as nearly the language of the power as possible, giving the number and a particular description of the land warrant authorized to be located if any by said power? Ans. The power of attorney was made on the 24th day of June 1846 at Washington, D.C. by ABRAHAM TUTTLE to WM. LYONS and BERNHARDT HEUER, or either of them. By it, TUTTLE appointed LYONS and HEUER or either of them, his attorneys, to locate a certain certificate, numbered 29444, upon a quarter section of government land and afterwards to sell and convey the title to the land so located to whomsoever they or either of them should see fit. Said certificate or warrant had been issued under the Act of Congress approved the 27th day of July 1842 to Tuttle for services rendered in the War of 1812.” 74 Qs.2. Where did the subscribing witness to said power of attorney reside at the time the Power was executed, and if now living, where does said witness now reside? Ans. “The subscribing witnesses to said power of attorney resided in Washington D.C. at the time the power was executed, and had lived there many years before. FRENCH is dead and I do not know whether STEWART is living or if so where he resides.” Qs.3. Were you personally acquainted with the subscribing witnesses to the power of attorney referred to? And did you see them subscribe their names to such power? 75. Ans. “They being at the time, officers of the house of which I was a member, I was personally well acquainted with both subscribing witnesses to the power of attorney referred to. It was executed in my presence, and I saw them subscribe their names to it.” Qs.4. Before whom, when and where was said power of attorney acknowledged, and by whom, when and where was the official character of the person taking such acknowledgement authenticated? When such certificate of acknowledgement and authentication attached to such instrument? State the contents of such certificates as nearly as you can; what official seals were attached to said certificates or either of them? Ans. “The power of attorney was acknowledged by TUTTLE before B. B. FRENCH and WM. W. STEWART on the 24th day of June 1846 in the Capitol building at Washington, DC.” The official character (?) of FRENCH and STEWART the Justice of the Peace taking such acknowledgement was authenticated on the 26th day of June 1846 by James Buchanon then Secretary of State at the department of State in Washington D.C. Certificates of the acknowledgements and authentication in the usual form were attached to the power and in the certificate of authentication the Secretary of State under the seal of the department of State of the U.S. certified that B.B. FRENCH and WM. W. STEWART were at the time of subscribing the power of attorney, justices of the peace for the County of Washington D.C. and that full faith and credit are due to them and as such (?). AUGUSTUS C. DODGE Taken, subscribed and sworn to before me by AUGUSTUS C. DODGE, this 11th day of Sept. 1873. SAMUEL K. TRACY, Commissioner The defendants then read in evidence the deposition of PASCHAL BEQUETTE as follows to wit: Ques.1. What is your name, age and present place of residence. Ans. “My name is PASCHAL BEQUETTE; am 68 years of age and reside in Visalia, County of Tulare, state of California.” 78 Ques. 2. Did you ever reside in Iowa County, Wis? If yea, state where you resided and how long you resided there? Ans. “I lived in Diamond Grove in Iowa County Wis, from May 9th, 1830 to April 15th, 1852.” Ques. 3. Are you acquainted with the parties to this action, or either of them, and how long have you known them? Ans. “I am acquainted only with the defendants HENRY and SMITH; have known them 30 or 35 years.” Ques.4. Did you ever claim to own the southeast quarter of section 7, Town 5, Range 3 east in Iowa County, Wisconsin on which is situated the "DUKE SMITH Diggings" so called- if yea, state from when you purchased it, how long you owned it, and what acts of ownership you executed over it? 79. Ans. “I owned the SW Qtr, Sect.7, T5, R3 East in Iowa County Wis on which is situated the "DUKE SMITH Diggings". I purchased the said tract of land from ABRAHAM TUTTLE through his attorney in fact, BERNHARDT HEUER. I owned it about 3 months; don't remember what acts of ownership I exercised over it, except to watch the diggings.” Ques.5. Were you ever acquainted with ABRAHAM TUTTLE, WILLIAM C. LYON and BERNHARDT HEUER or either of them - If yea, state how long you were acquainted with them and whether they or either of them are now living; where do they live and in case you say they or either of them are deceased, where and when did they die? Ans. “I am acquainted with LYONS and HEUER, have known HEUER for upwards of thirty years and LYONS about twenty-one years; LYONS is living at Stockton, state of California. HEUER died in the state of Iowa, do not remember the year.” Ques.6. Do you recollect anything about a power of attorney given by ABRAHAM TUTTLE to WM. C. LYONS and BERNHARDT HEUER - If yea, state fully all you know about said power of attorney; when was it dated; what were the names of the grantor and grantees and for what purpose was it given? 81.Ans. “I recollect distinctly the power of attorney given by ABRAHAM TUTTLE to WM. C. LYONS and BERNHARDT HEUER; it was given by TUTTLE to LYONS and HEUER to locate a certain land warrant numbered 27444 and to sell the land upon which the same should be located; it was dated June 24th, 1846; ABRAHAM TUTTLE was the grantor and WILLIAM C. LYONS and BERNHARDT HEUER the grantees. I located the said warrant upon the said tract of land and thereafter BERNHARDT HEUER by virtue of said power of attorney, executed and delivered to me a deed of said land.” (82). Ques.7. If you state that the power of attorney was given to locate land warrant and sell the land; state fully the number of the warrant and give the date of the Act of Congress under which the warrant was issued, and to whom it was issued, and the number of the warrant? Ans. “The said land warrant was numbered 27444 and was issued under the Act of Congress dated July 24th, 1842, and said warrant was issued to ABRAHAM TUTTLE.” Ques.8. Was any deed of conveyance made by or under said power of attorney - If yea, state what deed and for what tract of land. (83). Ans. “There was a deed of conveyance made by BERNHARDT HEUER by virtue of said power of attorney to me conveying the SW Qtr, Sec.7, Town 5, Range 3 East, situate in Iowa County, Wis; said deed was dated Sept. 4th, 1847.” Ques.9. Was said power of attorney ever in your possession- If yea, state when it was in your possession, how long it remained in your possession, and what you did with it? Ans. “Said power of attorney was in my possession in the year 1847, and kept it 4 or 5 years thereafter until I left the state. I left it in the possession of my sister, Mrs. ADELE DODGE, of Dodgeville, Wis.” Ques. 10. If, in answer to the 9th interrogatory, you say that you left the power of attorney with your sister, Mrs. ADELE DODGE, in Wisconsin, state whether you have ever received it from her, or do you know where said power of attorney is; state fully all you know about its loss or destruction. Ans. “I have never received it from her; all I know concerning its loss is what she wrote; I do not know where it is; I have never seen it since I left it with her.” Cross examination. Ques.1. Have the defendants or either of them or anyone furnished you with any paper or writing by which you are enabled to give the data or items called for in the 6 and 7 direct interrogatories - If yea, describe said paper, or writings, and attach the same to your deposition. Ans. “I have a copy of the power of attorney sent me by WM. T. HENRY, a copy of which is hereto annexed (attached to this deposition as an exhibit is a copy of the recorded power of attorney hereinbefore offered in evidence by the defendants.” Ques.2. What consideration if any was paid for the land warrant described in said power of attorney; state all you know or have heard upon that subject; also state when the consideration was paid? Ans. “I think I paid $180 or $190 for it; do not remember the exact amount, but it was about that sum; I paid it immediately after the location of the land warrant.” Ques.3. What consideration was paid for the execution and delivery of the alleged power of attorney from ABRAHAM TUTTLE and when said consideration was paid, state all you know or have heard about it. Ans. “There was no consideration paid for the power of attorney that I know of nor did I ever hear that there was any.” Ques.4. Was said alleged power of attorney witnessed, if so, by whom, and where are said witnesses living; Ans. “It was witnessed by B. B. FRENCH and W.W. STEWART, do not know whether they are living or not.” Ques. 5. Was the power of attorney alluded to in the 9th direct interrogatory the original power of attorney or only a copy furnished for you by HEUER or DODGE? Ans. It was the original power of attorney. PASCHAL BEQUETTE Taken, subscribed and sworn before me, this 16th day of July. N. O. BRADLEY, Commissioner The defendants' counsel then produced as a witness, Mrs. ADELE DODGE, who, being duly sworn, deposed as follows: “My name is ADELE DODGE, am a sister of PASCHAL BEQUETTE. Mr. BEQUETTE went to California in 1853, I think. When he went to California, he left all his papers in my care. I took care of them as long as it was convenient and when I left here, I destroyed them by burning them. Burned all he left with me. Did not know what they were. Did not know BERNHARDT HEUER. One paper contained the names of TUTTLE and HEUER. Was not acquainted with WM. C. LYONS. Don't remember that his name was in the paper. Remember there were two names, TUTTLE and HEUER; Don't know whether the paper was a deed or power of attorney. I burned that paper with the rest. Never delivered any of the papers to CHARLES L. STEPHENSON.” Cross examination. Ques. Where did your brother live just before he went to California? Ans. “He lived in Diamond Grove.” Ques. Was he at home the time you went to his house to get the papers? Ans. “No, he was in California at that time.” Ques. How long had he been to California at that time? Ans. “He had been gone to California a year or more as near as I can remember.” Ques. Who gave you those papers? Ans. “I took them myself. He wrote me they were locked up in a desk and I took them from a desk in his house in Diamond Grove.” Ques. In whose possession were the house and desk at that time? Ans. “In no ones, the house was locked up.” Ques. When did you destroy these papers? Ans. “Eight years ago this fall, in 1865.” Ques. Do you know whether the paper you mentioned as containing the names of TUTTLE and HEUER also contained the name of WM. C. LYON? Ans. “I do not.” Ques. Do you know whether this paper contained the name or names of any other person or persons? Ans. “I do not.” Ques. How many papers did you take out of the desk in Diamond Grove? Ans. “A great many.” Ques. Do you know whether any of them were deeds? Ans. “I do not.” Ques. Have you the letter you said brother wrote to you, requesting you to get the papers? Ans. “I have not.” Ques. At the time you said brother went to California, was he married, and if so did he take his family with him? Ans. “He was married and took his family with him.” Ques. How far from Mineral Point was this house where the desk was? Ans. “About four mile, I think.” Ques. Did you ever deliver any of the papers you took from that desk to any person? Ans. “Only to WM. LITTLE. I delivered him two tax receipts when he bought the place in 1865, just before I burned the papers. Never delivered any to anyone else.” (Possible missing line here). The court thereupon found as facts from said proofs that the existence and loss of said power of attorney was sufficiently proven, and thereupon ordered that the proofs above stated of the contents of said power of attorney be read and considered by the court and jury at said trial. To which ruling the plaintiff excepted. The defendants' counsel then offered in evidence the record of a deed of conveyance with full covenants in the usual form of and to the land described in the complaint from ABRAHAM TUTTLE by BERNHARDT HEUER, his attorney in fact, to PASCHAL BEQUETTE date Sept. 1st, 1847, acknowledged Sept.2nd, 1847, and recorded Sept. 20th, 1847 in Vol. M of deeds on page 365 in the office of the Register of Deeds of Iowa County. To the reading of which in evidence, the plaintiffs' counsel objected for the reason that said deed bears date prior to the issuance of the patent and was therefore void under the statutes of the U.S. And because the power of attorney from TUTTLE to LYONS and HEUER by authority of which HEUER made the deed was an irrevocable one and was shown by the deposition of DODGE to have been made for a valuable consideration and was therefore an equitable assignment of TUTTLE's interest in the land, and being dated before the patent was a issued was void. Because further, the deed was not properly witnessed and executed or acknowledged so as to entitle it to be recorded, and the record was not admissible in evidence. Which objection the court sustained, and the defendants' counsel excepted to such ruling. The defendants' counsel then offered the record of said deed in evidence as the basis of proof of an adverse possession under the same, of the lands described in it, for more than ten years prior to the commencement of this action by CHARLES L. STEPHENSON claiming title under such deed and not otherwise to the said land in good faith, and also that the statute of limitations had run against the plaintiff's tax deed. And the court permitted such deed to be read for that purpose and for no other. The plaintiffs' counsel objecting to the reading of the said record of said deed in evidence for any purpose, and the court overruled the said objection and permitted the deed to be read for the purpose last offered. The defendants then offered in evidence the rcord of a deed of conveyance with the usual covenants for title to the land described in the complaint from PASCHAL BEQUETTE and wife to GEORGE COLLIER dated Dec. 20th, 1847. Recorded June 29th, 1848 in Vol. N of Deeds on page 35, in the office of the Register of Deeds of Iowa County. To which the plaintiffs' Counsel objected, which objection the court sustained, except for the purposes only that the foregoing deed from TUTTLE to BEQUETTE was admitted to be read in evidence; The court admitted the said deed to be read for that purpose, and the defendants' counsel excepted to the ruling of the court excluding said deed for any purpose and said deed was read for the purpose for which it was so held admissible by the court. The defendants then offered in evidence a copy of the last will of GEORGE COLLIER and of the certificate of Probate thereof duly certified under the Acts of Congress relative thereto on the 6th day of Nov. 1872 by the clerk and judge of the Probate Court of St. Louis County, state of Missouri, which will bears date the eight of July, 1852, was executed in presence of three subscribing witnesses by GEORGE COLLIER, and was admitted into probate on the 23rd day of July 1852 by the Probate Court of St. Louis County, state of Missouri, as the last will of said COLLIER, deceased. The only portion of said will relating to the lands described in the complaint in this action is as follows, no other provision or clause in said will mentions or includes said real estate, to wit: 17th. “I give devise and bequeath all the rest, residue and remainder of my estate, not hereby otherwise deposed of, whether real, personal or mixed of whatever kind and wheresoever situated, unto my said wife SARAH A. COLLIER, my nephew EDWARD PREDELL and my said friend ALFRED CHADWICK as trustees, to have and to hold the same unto them the said SARAH A, EDWARD and ALFRED as joint tenants and not as tenants-in- common, and unto the survivors or survivor of them and to the heirs, executors, administrators and assigns of such survivor forever as trustees in trust for the use and purposes herein expressed. Said trustees are authorized and empowered to sell and convey any and all the real estate. I may die seized and possessed of ____ on being outside of the said city of St. Louis with its present limits and to take the proceeds thereof and to apply and reinvest the same for the purposes and objects specified in this will and in the manner hereinafter more especially mentioned as to incomes of my estate.” Said trustees were also executors of said will. To the reading of which, in evidence, the plaintiffs' counsel objected, for the reasons 1st The same was irrelevant inasmuch as GEORGE COLLIER had not been shown to have any title to said real estate, and 2nd, said will has never been admitted to probate in the state of Wisconsin, and is therefore not sufficient to pass title. The latter objection the court overruled and the plaintiff excepted. The first objection the court sustained, except for the purposes only that the foregoing deed from TUTTLE to BEQUETTE was admitted to be read in evidence, the court admitted said copy of the will of COLLIER to be read, and the defendants' counsel excepted to the ruling of the court excluding said deed for any purpose- and said will was read in evidence for the purpose for which it was so held admissible by the court. The defendants then offered in evidence the record of a deed of conveyance from SARAH A. COLLIER, EDWARD PREDELL and ALFRED CHADWICK as executors and trustees of the will of GEORGE COLLIER, deceased, and by virtue of the trusts and powers upon them conferred and in them vested by said will unto CHARLES L. STEPHENSON of the lands described in the complaint and other lands in Wisconsin, dated May 8th, 1857, recorded June 10th, 1857 in Vol.1 of Deeds in the Register of Deeds office of Iowa County. To which evidence the plaintiff objected for the reason the same was irrelevant no title to said real estate having been shown ever to have been in the said GEORGE COLLIER, and because the will of COLLIER never having been proved in Wisconsin, no title or authority was by it conferred upon them, and the court sustained the said objection so far as the objection that COLLIER had no title was concerned, and overruled the other objection, but rejected the said deed except for the purposes only that the foregoing deed from TUTTLE to BEQUETTE was admitted to be read in evidence and for that purpose only, the court permitted said deed to CHARLES L. STEPHENSON to be read. And the defendants' counsel excepted to the ruling of the court excluding the deed for any purpose. The defendants' counsel then read in evidence the record of a deed of conveyance of the land described in the complaint from ABRAHAM TUTTLE to B. S. FOSTER dated April 4th, 1848, recorded July 3rd, 1848 in the Register office of Iowa County, and a deed from B. S. FOSTER to WALTER NICHOLAS dated Oct. 20th, 1849, recorded in the Register's office of Iowa County Sept. 16, 1852 of the same premises. The defendants' counsel then offered in evidence a deed of conveyance of the lands described in the complaint from WALTER NICHOLAS and wife to CHARLES L. STEPHENSON dated July 13th, 1872, recorded Sept. 24th, 1872 in the Register's office of Iowa County- to which evidence the plaintiff objected because said deed bears date subsequent to the commencement of this action- and the court sustained such objection and excluded the said and the defendants' counsel excepted to such ruling. The defendants then produced as a witness, the defendant WM. T. HENRY, who testified: “I live in Mineral Point, Iowa County, Wis. Have lived there since 1834. I have acted as agent for parties buying and selling land and paying taxes, keep abstract office, etc. I am familiar with location of land described in the complaint. It is oak barren; had scattering oak timber on it which has been cut and now has second growth. In the north end of the land, there is a little stream and a little 6 or 7-acre hay bottom where this stream traverses. It is rolling land generally with one large ridge in it. On top of ridge is pretty fair level land. The DUKE SMITH Diggings is situated near the S. W. corner of the E. 80, but since the DUKE SMITH Diggings was struck up, mining has been carried on over considerable of this 80. Digging extends about 130 yards northwest (40)? section. There is some mining carried on, on the main ridge, but can not tell how much, but I don't know of any digging except the DUKE SMITH Diggings. On the south end where the DUKE SMITH Diggings are situated, the land is hardly good for anything else except diggings, but towards north end the land is valuable for agricultural purposes. Have had charge of this land since July 23rd, 1857. Had it surveyed then. I acted as agent for CHARLES L. STEPHENSON of Galena, Ill.” WM. HENRY introduced field notes of Tredway Survey of said land on July 23, 1857. “STEPHENSON claimed ownership. I think WHITTLESEY paid the taxes for a few years, and the rest of the time I paid them. In 1853,4,5,6, the taxes were paid by COLLIER. In 1858-9 by WHITTLESEY. From 1860 to and including 1874, the taxes were paid by me for STEPHENSON. I surveyed the land in 1854, was there myself at the time the land was surveyed. I found 8 men working on the land that day, their names are CHARLES WEST, RALPH PENHALLAGON, JOSEPH JONES, LOUIS POQUETTE, SAM’L PERRY, Sr and SAM’L PERRY, Jr., GEORGE CHAMBERLAIN and WILLIAM HUGHES. There told them who owned the land and verbally leased it to them. They all agreed verbally to pay rent. These men were at different points in the DUKE SMITH Diggings on the south end of this land. I rented the little hay bottom on this land to JOE JONES for several years. Rented it afterwards to a Dutchman. I don't ____ what his name is as the entry in my book is that $3.00 was paid by a Dutchman for hay. I leased this hay bottom to JONES for the first years, but afterwards to others until they all said it did not pay. I used to go out to the land once in a while myself.” “In 1862 or 63, I found men digging mineral on this land and not paying rent or dues and I had them arrested. I have not been able to find any record of that arrest. In 1863, I got a person by the name of VAIL to take care of this land. He died in 1865. After Vail’s death, I got a person by the name of VINGO to take care of it. I did not go out to this land as often after this as I did before I got these persons to take care of it for me. VINGO took care of the land up to the time the injunction was issued. After VAIL was appointed by me to care of the land, I went out about once a year. There 8 or 10 men arrested and among the number was one CHARLES WEST. In the mining season from 2 to 8 were working on the land. This is in the wintertime. Sometimes there was some mining done in the summer.” Ques. State agreement as to mining in summer. Objected to by plaintiff. Objection overruled. Plaintiff excepted. Answer. “I leased the said lands to miners for winter mining and held it for them over the summer season. It is a custom, I think, to permit miners to work in the land in the winter and to have it held for them during the summer while they are working their farms. I understood this to be the custom. I have land leased in that way. Hold it summer, work it winters.” Plaintiff objected to all evidence being admitted tending to show mining custom or mining possession as being immaterial and irrelevant. Objection overruled and Plaintiff excepts. “There were men mining on this land during the mining season while VAIL acted as agent. I don't know how many, as sometimes there was more than others. POQUETTE, WEST and others worked some every year, I think from July 23/ 57 to commencement of this suit. Have no means of knowing what they paid the first few years, but latterly have.” “On May 2, 1860 I have a memorandum of a "Dutchman" paying me $3.00 for hay and $3.00 for mineral dues. JOHN INCH paid May 19/60 for mineral dues $1.25. 23rd of July, 1860 I received from PETER HAUBRIS for mineral dues $2.50. On 19th of May 1863, VAIL as agent paid me $16.50 for dues collected from miners on this land. On May 26, 1864, JOHN ROLAND paid me for mineral dues $4.00. On 20 July, 1866, VINGO paid me $5.00 for dues collected from miners for minerals raised on this land. All the above dues were paid me for minerals raised on this land. Dec.7th, 1866, VINGO as agent paid me $10.00 as dues collected from WEST on February _____________ (missing line) _________...$1.00 as due April 6, 1869. VINGO paid me $15.00 as dues collected from WEST June 28, 1869. VINGO paid me $6.00 for dues collected from mining said land May 17, 1870. PENHALLIC paid me $10.00 for dues and on March 27, 1871, BRADY paid me $4.00 for dues on mineral raised on this land. VINGO kept out his share for collecting and these amounts are what he paid to me.” Plaintiff objected to all evidence being admitted tending to show the amount of dues received from miners on the said land or tending to show mining customs or mining possession as being irrelevant and immaterial- objection overruled and plaintiff excepted. Plaintiff, by his attorneys, then moved the court to strike out all the testimony tending to show mining customs, mining possession on the amount received as dues from miners for minerals raised on said land as being incompetent, irrelevant and immaterial, which motion was overruled, to which ruling the Plaintiff excepted. “VINGO retained part of money collected as dues from miners for his services. I accounted to my client for the money collected as dues from Feb'y 1868 to Feb'y 1871. CARNS and PHILLIPS worked there in 1868 and 1869, and WEST and POQUETTE and other men worked there during the same time. I was never out there in the mining season but that I have found men working there. Have been there from two to three times per year from date of Tax deed and always found men working there. There was a windlass in sight. I don't think miners did as well there in the last 4 or 5 years as they had done previously, still there was some work done there as men kept prospecting a little, trying to get something. I had a house built on this land in the south end of the west 80. I think in Oct. 1871. Can not state exact date. The building was a frame 12 by 14 feet, shingle roof.” Ques. What became of that house? Objected to by plaintiff on the grounds of its being immaterial and irrelevant. Objection overruled. Plaintiff excepted. Ans.” Mr. WILSON said he took the house down in October 1873. I tendered the County Clerk of the county the amount that it took to redeem the land from the sale of 1858.” Plaintiff objected to last part of testimony as being immaterial. Objection overruled and plaintiff excepted. “The clerk objected to taking it since a deed was issued. I tendered in Oct. 1873, the costs for deed of redemption and 25 per cent interest which was refused because of deed.” Objected to by plaintiff on grounds as above. Court overruled the same and plaintiff excepts. Cross examination. “House was built on said land in October 1871. I did not see it done. I think I knew of WILSON having had postholes dug on the land previous to the time I put the house up. My object in putting up the house was to take actual possession by putting a man in there.” Question. Had you not dismissed the suit in ejectment against WILSON previous to putting up the house? Defendant objected on the grounds that the record of said suit is the best evidence. Objection overruled. Defendant excepts. Answer. “Suit commenced in Jan'y 10/70 in ejectment against WILSON. Same suit was dismissed in Oct. 1871 by HENRY and SMITH as attorneys of STEPHENSON. I do not think I have stated all the dues I received that I have any certain account of. Mr. STEPHENSON owns the tract of 120 acres of land adjoining south of this in Section 7. The DUKE SMITH Diggings are on this land. Some little went over on to the land in Sec.18, south of this land. The DUKE SMITH Diggings extended to Sec. 18 south. DUKE SMITH was shot in 1834. The men told me the dues they paid were on mineral from the DUKE SMITH Diggings. Don't know and I never was told from what Section- 7 or 18- the dues were paid on mineral from.” Ques. Is not 9/10s of this land valuable for agricultural purposes? Defendants object. Objection overruled. Defendants excepted. Ans. “No. Some of it is broken. There is a hay bottom and there is about 80 acres on the ridge that is cultivated. About 40 acres from south line northward is broken and not valuable for agricultural purposes because of being cut up with a ravine and mineral hole. It is also rocky. The rest is valuable for agricultural purposes. The ravine is about 30 or 40 feet wide. From above point northward the land in the whole, is good for agricultural purposes.” “Mr. STEPHENSON owned land in Sects. 20, 7, 18, 29 and 30 in Town 5, Range 3 East, and they were all mining lands. Never caused any other tract of land belonging to STEPHENSON in said Town 5, Range 3 east to be surveyed except this tract. The land was not fenced when I rented it for hay. The meadow or hay bottom consisted of about 6 or 7 acres. It was at north end of the 1/4 section. I rented the hay bottom up to the year 1862 or 63. The land never was fenced at all. Other peoples fences have partly enclosed it.” “I used to go out on this land about 2 or 3 times a year until VAIL and VINGO were appointed. After they were appointed as sub-agents, I did not go out to said land as often as I had done before. No one lived on this land. VINGO lives about 1and 1/2 mile, and VAIL lived from 1/2 to 3/4 of a mile north of it. Not positive that I was ever on this land in summertime. I went to the land mostly in wintertime.” “I agreed with the miners to keep their mines during the summer season of the year. Sometimes this agreement was made when a man first began digging on this land and sometimes persons digging on this land would come and ask me to keep the mines over the summer for them. The miners would come and ask permission to leave their mines in summer. I don't know what is the reason they did come to me and ask permission when such custom prevailed unless they were ignorant of such a custom.” “Each man had land to himself. WEST and HOLMES, I think were arrested. I think I have seen men digging there in summer time. I understood that all the land leased for mining purposes were to lay idle during summertime. The entry of money paid me by a Dutchman in 1860, I think, is in a letter for hay. The Dutch entry May 9, 1860 not on book. PETER HAUBRIS entry is same as the Dutch entry taken from a memorandum not from books. The items of dues on this memorandum are not transcribed from my books. On my books the entries of money from VINGO and others show they came from the DUKE SMITH Diggings. The PENHALLIC $10.00 was from D.S. Diggings. When PENHALLIC came afterwards with dues I took it for granted it came from the D.S. Diggings, but am not satisfied it came from there, but the $10.00 was from there. When I first made this memorandum, I took the items from the ledger. PENHALLIC denied that the dues, except the $10.00 credit as coming from the DUKE SMITH Diggings was for mineral raised there. Except these items my present memorandum is same as in former trial. Redirect. “There are 100 acres south of this land that was owned by Mr. STEPHENSON. Date of sale of the land to WEIDENFELLER is April 24, 1869. Have not paid STEPHENSON the dues recovered from parties arrested. I kept them for my trouble and services.” The defendants then produced as a witness, JOHN VINGO, who testified: “I live on the survey. I know the land in controversy in this action. I commenced acting as agent for HENRY in 1865, it may have been 1866. The first dues I received I think was in 1867. I was employed I think in the spring of 1866.” Plaintiff objected to all evidence being admitted tending to show mining customs, mining possession or the collection of dues for HENRY as being immaterial and irrelevant, which objection was overruled and plaintiff excepted. Mr. HENRY asked me to act as his agent on a Saturday and I commenced on the following Monday. I saw a man working there. I told him I was appointed as agent by Mr. HENRY. POQUETTE and partner and Mr. CAIRN (?) was digging then and had windlasses. CHARLES WEST has dug there 22 years or so. His son digs generally with him. Most of the miners mine there in winter and work their farms in summer. WEST has generally worked in the winter. WEST has worked there every season since 1860. He worked there before I came there to attend to it. I got $30.00 altogether from him for dues; he has worked there more or less right along. I once told him that Mr. HENRY said he must quit.” “Mr. POQUETTE and son have worked there every winter commencing about the middle of October and working until spring or about March or April when they quit to work their farm. I was there every 3 or 4 weeks, sometimes oftener. Sometimes I was absent from this land longer than this, sometimes I was there oftener than this.” “TOM HOLMES, POQUETTE and son, and CHARLES WEST were the only ones that were there as old standards. Other men were digging there sometimes. BRADY and LOVELL were two of them. It was understood among miners that one could come and go when he pleased. I never received any dues from HOLMES. POQUETTE had no lot other than occasionally. Where ground is left out to dig, miners can come and go as they please. COOLEY dug there in 1868 in summertime. A Mr. PHILLIP and his partner CARN dug there in '70 or '71. On Oct. 2nd, 1871, I received the last dues from PHILLIP before the injunction was served. Don't know whether they commenced digging there in fall of '70 or '71. I think though, it was in the fall of 1870. CHARLES WEST, POQUETTE and son, PETER COOLEY, JOHN WEIDENFELLER, T. HOLMES, PETER PHILLIP and JOHN CAIRNES worked there during my sub-agency. Never saw HILDRETH at work there in 1871. North of the ravine, I believe it was, in 1870 that he was there. I saw LOVELL there in 1868 or 1869. I don't think he did much. The first entry I have in my book of dues collected by me is in July 22/67. I collected on that date from CHARLES WEST $5.00. On Oct. 22/67 I received of PETER COOLEY $2.00. On April 7, 1869, I received of CHARLES WEST $20.00. The mineral for this last dues was raised in 1869. I think he was there most of the time. I can't tell how regular he worked. I received on April 15, 1869 $4.00 of POQUETTE, June 5, 1869 WEST paid me $5.00. In 1871, I received of PETER PHILLIP $1.20. I gave him permission I think in 1870, still it may have been in the fall of 1871. My impression is POQUETTE and WEST worked there right along. I found PETER COOLEY digging there in 1871 and several times before that. I have no account of dues received of COOLEY in 1870. In 1868 or 1869, WEIDENFELLER commenced digging. This is my impression.” “PHILLIPS asked permission to dig there in 1870 or 1871. I am not exactly sure which year it was, but am sure it was either. CARNES ____?, part of winter of 1868. I received dues from him that spring. I did not see HILDRETH working there. TOM HOLMES worked there I think in 1868-9-70. I believe these are the years he worked there. Never saw LOVELAND there but once, don't know in what year I did see him.” “During the three years after February 1868 until February 1871, mining was carried on as regular one year as it was another. I was told that the mining which had been done up on the ridge was done in 1870. I gave HOLMES license to cut hay on bottom in the fall of 1869 or 1870. I never gave him leave but once. I never knew where the south line was until WEIDENFELLER fenced. I don't believe I ever collected or received dues from any land except from land north of the south line of this land.” Cross examination. “I live 1 and 1/2 miles from this land. I don't know exactly how often I visited this land. I may have visited it once a month, I might have twice a month, there may have been sometimes that I would not visit it for 2 or 3 months. There was persons that mined there without my permission. I never received any dues from HILDRETH, LOVELL, or BRADY. I have given you all the names I can remember of.” “CHARLIE WEST mined there in 1853. I am not positive that WEST dug there in 1866-7-8-9. Can not say positively that he worked there any of them winters. He was sick one winter. POQUETTE worked there now and then through the years. Am not exactly positive that he did work through three years. PETER COOLEY worked there in 1869 or 1870. It is my impression that WEIDENFELLER and PETER COOLEY worked together. I received dues in 1871 from PHILLIP. I don't know when he dug there, whether it was in 1870 or 1871.” “I never saw PETER PHILLIP dig there. I saw CARNES working there once. I never saw HILDRETH and LOVELAND to work there at all. CARNES was there when I first got there. TOM HOLMES I saw several times. I know he mined there in 1868 and 1869. I believe he dug there more or less in 1868, 69 and 70. HOLMES I saw working on S. side of hollow. I commenced to be agent under HENRY in 1866. I collected dues in the City of Mineral Point and handed them to Mr. HENRY. I don't know when VAIL died. Don't recollect who mined there when VAIL was agent.” “POQUETTE told me he was glad I was appointed agent. When my sub-agency commenced the only men that were digging up there was COOLEY, CARNES and POQUETTE. WEST may have been then.” The defendants then offered as a witness, LOUIS POQUETTE, who testified as follows: “I have known this land in dispute since 1834. Have worked off and on it, not steady. I don't know exactly when I commenced mining on it, I think it was about 34 years ago. I did not work regular. I got permission to work there first from Col. BEQUETTE. I can't tell how regular I did work. I did not work there in either of the years of 1868 or 1871. I worked there all the winter of 1869 and part of the winter of 1870. I also worked there in 1866 (?). I am not sure as to '66. The only winter that I am sure of is '69 and '70. I worked from time to time from 1860 to 186?. Nearly every year I worked some. Worked generally in winter, worked some little in summertime.” “We generally get privilege from agent to have land kept for us over the summer. From 1860 to 1870 we got privilege to leave summer and work winter. I worked on South end of land. The custom is that if a person absents himself from the diggings six weeks he forfeits the privilege of working his diggings. WEST, COOLEY, WEIDENFELLER, JOHN CARNE and PETER PHILLIPS worked there in 1869 and 1870, 1871. HILDRETH also worked on this land in the year of 1870 near the north end of the range. RD VIVIAN also worked there with him. There was somebody working there part of the time from the year 1868 through the year 1871. There might have been a week or more without anyone working.” “HENRY gave me permission to dig on this land after BEQUETTE gave it to me. HENRY sent me back with the dues to VINGO where I offered them to him. There has been a good deal of mining there for float mineral. I know CHARLIE WEST. He used to follow the mining ___(possible line missing)_______ the miners. I don't think he ever mined anyplace else. The WEST diggings are on this land. I know the lines of this land. I know that the WEST diggings are all on this land. I have raised considerable of mineral on this ground from time to time.” Cross examination “I paid rent on all the mineral raised by me. I paid the rent either to HENRY or his agent. Before 1869 I paid the rents to HENRY. I paid some rent to Mr. HENRY in 1860. BILL WELSH worked with me when I struck the ?bunch? in 1860. It was in the south part of this land pretty close to the line, that I struck the ? bunch. That mineral was on the south 80 the WEIDENFELLER tract. I worked part of the time on the WEIDENFELLER tract and part of the time on this land, all on the DUKE SMITH Diggings. Testified once before that I mined in 1861 and 2 on the WEIDENFELLER tract, and in 1863 on Judge COTHREN's land in 1864 and 5. I don't know where I did mine in 1866. I was sometimes on COTHREN's land some time I was on WEIDENFELLER’S and all over, I don't exactly know where.” “After paying dues in 1860, I never paid any until 1869. I did not get anything to pay dues on. I sustain my family by mining. Sometimes work a day here and a day there for other people. I got a little mineral from ‘60 to ‘69, or else my family would have starved. I got no mineral worth paying rent on from 1860 to 1869. I could leave my diggings for six weeks at a time and more in 1860. VAIL told me that he gave all miners same privilege. I did not sink a shaft on this land in 1869. The fence is about 30 yds south of the S line of this land. The shaft is 30 yds from the fence. LOCKETT helped. The mineral I paid dues on in 1869, I got all over the disputed land. All I know of the line is from what WEIDENFELLER told me. Did not know where the line was before I knew where the corner was.” Redirect “I did some work in 1869 and 1870 on this disputed land. When I testified on former trial, I did not know the line exactly, but I have examined it since I helped MADDEN survey it.” The defendants then offered as a witness JOHN CARNS who testified: I know the land in dispute. I have worked on it in 1864 or 5 and in 1869 and 70. In the fall of one of those years I got permission from VINGO. I can not say how long I worked in 1869 or 70. It might be 3 weeks or a month. My partner’s name was PHILLIPS. I have not worked mining since 1870. I can not tell exactly whether I worked any other time during the years 1869-70 there the 3 or 4 weeks mentioned. I might if you put what work I done in 1864 and 1865 have worked a year. I worked in the hollow in shallow diggings. I got but very little mineral there. The rent was paid to VINGO by my partner. I had a windlass in the diggings in the hollow. Anyone could have seen that I worked there. I can not tell if any person worked there besides WEST at the time I worked there.” The defendants then produced as a witness, JOHN WEIDENFELLER, who testified as follows: “I know the disputed land. I own 100 acres south of it. I know what is termed as the WEST diggings. I helped run the mine between line and disputed land. The WEST diggings are all on the disputed land. I bought my land in April 1869. WEST has not mined on my land since 1869. Don't know whether WEST raised mineral on this disputed land in 1869 or not. WEST never asked me for license to dig on my land. HOLMES has not dug on this disputed land to my knowledge. I think I have seen POQUETTE there. I never seen any person else then in 1869. Saw no one but CHARLES WEST working there in the year 1869. I worked within 40 rods of the diggings and I saw no one digging there except CHARLIE WEST in the years 1869-70-71. The mining on this land is close to my line. There might have been some working in the hollow. I saw a CARN loading mineral at WEST's diggings in April or May 1869.” The defendants then offered as a witness, NICHOLAS ESLI, who testified as follows: “I know this disputed land. I help to ___ the line along the south end. The WEST diggings are on this disputed land. I own the land with WEIDENFELLER, that adjoins this disputed land. CHARLIE WEST asked permission from me to clean out a hole. I don't know whether he did so or not.” Defendants rest. The plaintiffs then recalled ALEX WILSON who testified as follows: “I was present when Maj. OTIS and the clerk of the County Board made this tax deed. I stopped there in his office until it was finished. I carried from there to the Register's office that same day. It is now in the same condition as when I received it for anything that I know of. I have made no marks or erasures on the deed at all except the words "in evidence" marked with a pencil on back of it as a memorandum to show that it was offered as evidence in this action. The Certificate of Record is same now as when made. The deed was acknowledged in my presence.” Cross examination “I can not tell whether there has been any erasure of date of certificate or not by looking at it now. Have no means here at my command to tell whether the deed was made Feb.3rd or 1st, 1868. Have no memorandum outside and the memorandum which I now exhibit by which I can tell whether the deed was Feb.3rd, 1868.” Redirect Question. What do you know from personal observation of the occupation and possession of the land in dispute? Answer. “I went out on the land in May or June 1868 and went over a considerable portion of it. I rode over the north and south ridge and could see no mining on it there now. I never seen any person on the land at all. I went out in September. I could see nothing then to indicate that there had been any mining been going on since June, the date of my other visit. I could see no fresh dirt or windlass. I could see nothing that indicated that there had been any mining going on since the time I had visited it last. At that time some person showed me the lines of this land.” “I again visited the land in 1869. I saw no one there mining at that time. I was sued in 1871. I gave HOLMES and HILDRETH license to dig there and I think to CARNES or COOLEY. HOLMES got privilege from me to use the water on the land. I gave HILDRETH the license in the spring or summer of 1870. He offered to pay me dues. It was so little that I did not take it. WEST paid dues to me of about $4 or $5.” “Went on the land twice in 1868, once or twice in 1869 and don't remember about 70. I was there in fall of 1871. I never found any one mining on this land before Feb. ‘71.” THOMAS HOLMES [Jr] was called by plaintiff and offered as a witness. He testified: “I know the land in dispute. I have known it since I was a boy. I have known it for 30 years or over. I moved there 8 years ago last July. There might have been some light mining down in summer such as sinking shallow holes but mining has never been carried on in this land in summertime. I have lived 6 or 7 years adjoining this land. My house is situated about 100 feet east of the line of this land. I could see the south side of diggings from my door. I moved into my house about the middle of July 1869. Am not positive about there having been no mining done on the disputed land that summer, but I know that if there was any at all, it was very little. There was more than two months that there was no mining done on this land that summer. If there was work done on the land in the summertime it would be very little. Men might come and work two or three days and go away and stop 3 or 4 weeks and some would never come back. Sometimes they would leave their windlass and come back again.” “I think that the WEST diggings are partly on this land and partly on the WEIDENFELLER land. I think no one mined on this land the winters of 1867 or 1868, except WEST. There has not been [any work] done on this disputed ground while I have lived there, in any three years as much as work in mining as two men could do in two months. Mining has not been regular or constant on that ground. I don't remember that I ever saw Mr. HENRY there.” Cross examination. “I have hauled water for the use of my house from that land and if any one dug there I would have seen them. No one worked there except CHARLIE WEST ______________. I moved on the land about four years ago last winter. ______________ a little, have seen POQUETTE at work there. POQUETTE would have worked on north end and I not see him ____ continued.” “I never got the privilege from VINGO or HENRY to mine on that land. I did ask VINGO once if he had authority to let anyone cut hay on the bottom. He told me he had. That fall LEVI HILDRETH cut the hay on the bottom. HENRY never saw me digging on that land. Neither did VINGO. I never showed VINGO mineral that I had raised on that land. I think I might have raised 50 lbs in the whole.” “Poquette mined on COTTON [or COTHREN] and JOHN HUTCHESON land in 1870. I never asked permission of HENRY or VINGO to dig on the disputed land. I have mined most of my life. The miners had no right to be absent from their diggings over 10 days so far as any custom prevails with mines in the country that I have ever heard of. I have known the land and also that neighborhood for 30 years. I know the fence built by the WEIDENFELLER on the south side of the land.” JAMES ____ was then called by plaintiff and testified as follows: “I live in the survey., have lived there for 8 years. I mine in the wintertime and work my farm during the summertime. I don't know of any custom among miners that a man can leave his diggings in summertime unless he forfeits them except he has an agreement with the landlord.” The plaintiff then called ALFRED RICHARDS to testify as to the customs which prevail among miners: I have mined a great deal in my lifetime. The custom through this country among miners is that if person absents himself from his mines for 3 or 4 weeks without permission from his landlord he forfeits his diggings. There is no custom though this country that a man can leave his diggings in summertime and not forfeit them. He must get permission of his landlord if he wants to leave.” Plaintiff called RALPH PENHALLIC: I know this land, have mined on it some 18 years ago. I paid Mr. HENRY $17 for dues on mineral raised on this land 17 or some time, I think it was about 18 years before I paid it. When I raised it I did not know who owned the land. Found Mr. HENRY owned it and paid him the money. I also paid him for mineral raised on the SPENSLEY land. If I wanted to leave my diggings in summertime I would ask the landlord to keep them for me. I do not know of any custom that a man can absent himself from the diggings during summertime without forfeiting them.” CHARLES WEST, on being called by Plaintiff, testified as follows: “I know the land in dispute. I saw the lines on land when surveyed. Col. BEQUETTE made survey 20 years ago, when I first entered my place. I have dug some on this land. Largest part of my diggings is on the west end of the south side line and the east end is on the north side of the line. I first commenced digging there some 25 years ago, never dug there regularly. I did not mine in summertime. There has been 3 winters in succession that I did not mine on this land. I was sick about 4 or 5 years ago. I paid VINGO $20 due for minerals raised on this land and the WEIDENFELLER land. I don't think there has been any regular mining on this land. Two miners in ten months could do all mining done on this land in any two years.” “I worked off and on during winter just as I felt like it. I did not do any mining in the summertime. I held this piece of land from BEQUETTE. HENRY came out then to me and told me to pay the dues to him. Mr. HENRY never had me arrested for not paying dues. I never made any agreement with VINGO or VAIL. The custom among miners in that country depends altogether on the richness of the mine. If the diggings are worth anything, they are liable to be jumped if a person leaves them for two or 3 weeks.” “The custom as I understand it and as I have understood it for the last 25 years is that a person can not leave his diggings without being worked without permission of landlord, and if he does so leave them, they are liable to be taken by the first miner that comes along. I know where POQUETTE and LOCKETT's shaft is situated. It is not on this disputed land, but on the WEIDENFELLER tract. I have not seen POQUETTE work on the land for the last eight or ten years except very little. I never seen Mr. HENRY out on this land except when he told me to pay him the dues.” Cross Examination “It is some 20 years ago since I seen this land surveyed. There has been a survey made since and lines made, but I have not seen them. This new line corresponds with old line except about 3 or 4 feet. About half of the digging is on the WEIDENFELLER land. There is a part of my diggings, the WEIDENFELLER part, that I can not dig on. I dug in that shaft that WEIDENFELLER gave me permission to clean out. I first obtained leave to dig from BEQUETTE some 25 or 30 years ago. About one year from the time that “BECK” gave me permission, FERRIS came then with a strange man and informed me that he had a Warranty deed of this land. He prohibited me from any more dues to BEQUETTE.” “I never took the land from either HENRY or VINGO. I did agree to pay Mr. HENRY rent and I have paid them rent. I have paid his agent for all mineral raised up to the time the injunction. I have done some mining on this disputed land ?though? nothing that would astonish any person, such as cleaning out old shafts, etc. There was some two years about 4 or 5 years ago, that I did not work on the land at all except I might work a little in the wintertime. I would mine a little now and then, nothing regular. I have seen POQUETTE there mining on the DUKE SMITH Diggings, the most part of which is on the WEIDENFELLER land. The winter before the injunction was land ??? land I worked there in the winter before that. I don't hardly know where I did work. I have never had any partner outside of my own family of late year. I know a man named LOVELAND, but do not know that he ever worked on this land.” Redirect “In this vicinity they mine as much in the summer as they do in the winter if they have got diggings that pays, but it has not been the practice to prospect in the summertime as the men could find steady work on their farms or for wages.” MICHAEL I(?) CARNEY was then produced as witness by the plaintiff and testified as follows: My occupation is mining. I have mined for the last 28 or 29 years. I know the land in dispute. I know what is called the DUKE SMITH Diggings and know where they are situated. There is a portion of them on the WEIDENFELLER tract. I know what is termed as the WEST diggings. There are lots that he claimed as his digging ground that are on the WEIDENFELLER tract; though the diggings where he is now are on the disputed land. I saw his windlass on the disputed land. I don't exactly know how close it is to the line. I have dug a good deal on this land. The most of the miners in this section are persons who have got little farms. They do not dig steady; only a little in winter as they have got to work their place in the summertime. There has been no constant mining here since the California mines were first heard of. I come there the fall of 1846. I have not mined there of any consequence for the last 20 years…” “There has been very little mining done on this land for the last 20 years as there was nothing on the land for persons to get to pay them for their work. I can not tell the exact amount of mining done on this land as I have not been on the land often enough to know. I do not know much about it for the past 10 years. According to the mining custom it is altogether discretionary with landlord whether they will keep the digging or not. The custom among miners was that they had to dig two days a week. As to the rule which is said to be a custom that a man can have his diggings in summer without working them, I never have understood any such thing to be the custom. I would rather work mine in summer than in winter, if they paid for us doing.” Cross Examination: “I worked on the land about 29 years ago. I worked under BEQUETTE. I have worked off and on for several years after. After Col. BEQUETTE went to California, there was no one to look after it.” Redirect: “I don’t know where the LOCKETT and BEQUETTE shaft is.” The plaintiff then produced as a witness, JOHN INCH, who testified as follows: “I live in Diamond Grove. I know the land in dispute. I have known it for the last 24 years or more. I have done some mining on it. The first mining I done on it was in the year 1851. I bought in with CHARLIE WEST as a partner. I have not mined on this land for the last 10 or 15 years. I paid Mr. HENRY dues, $1.25 in 1860 for mineral raised on the WEIDENFELLER tract. The west end of the DUKE SMITH Diggings is on the disputed land, but the main range is on the WEIDENFELLER land. In ’55, ’56, ’57 there was considerable good dirt taken out in the hollow. There was nothing on this land to pay a man for working regular. The best of the diggings was worked up before I seen them. All I done on the land was to clean out the old shaft and work on the old pillar.” “There is no custom in the country or around it that I have ever heard of that compels a landlord to hold diggings for a man over the summer. The only thing that I ever heard was that a man that wished to leave his diggings left his windlass on it. This was not good to hold them if a person wished to jump them, it only was to show that they were taken. There is no custom in the country by which a man can leave his diggings over the summer without working unless he get the landlord to hold them.” Cross Examination: “The last place I worked was on the DUKE SMITH range, and this was somewhere about the year 1865. At that time I recognized Mr. HENRY as the proper person to pay rent to. The WEIDENFELLER land then belonged to STEPHENSON. I was never there when land was surveyed. I have not been there very much since I quit. There has been a good deal of digging done on this land as there has been a little done every year since mining was first done in this country. There has been some mining done on the north side of the ravine.” Redirect: “I think there has been 5 acres of this disputed land that has been mined over. The rest of the land if good for anything, is good for farming.” The plaintiff then produced as a witness, JOHN PRISK who testified as follows: “I am a miner, have been a miner all my life. I have mined pretty much around Mineral Point. I know of no custom that will allow a man to leave his diggings summers and work winters. I never heard of any such custom. I would not consider it safe to leave good diggings any length of time. Whenever I want to leave my diggings, I apply to the landlord for permission to do so.” Cross Examination: “Have gone to my landlord and asked him to keep my diggings for me. Don’t know of any custom that allow farmer-miners to let the diggings lay idle in summertime more than any other miners.” RICHARD JACKSON was produced as a witness by plaintiff. He testified as follows: “I have mined for 25 years around Mineral Point. I understood the rule to be that a man would have to work his diggings 5 days a week or they would be liable to be jumped. The same rule was in Dreadnought and other mines. Never heard of any custom allowing men to leave their diggings summer and work winter. I would never trust my mine to run in that way, if they were of any worth. Shallow mining is better in summer than in winter. Mining can be carried on about as well in summer as in winter.” Cross Examination: “I have mined exclusively almost 25 years. I never found any miner that would like to leave his diggings summertime if they were any good. There is no custom to my knowledge that allows miners to leave their mines summer and work winter without permission of the landlord.” The defendant then offered LEVI HILDRETH as a witness who testified as follows: “I have worked on this disputed land. I commenced to work under VINGO, then under Wilson. I worked a month or so under VINGO. A man told me Mr. WILSON wanted to see me. I went and seen Mr. WILSON, and he told me that he had a claim on this land and that I was pay dues to him. This was in May or June of 1870.” Rebuttal: WILLIAM HENRY being recalled, the defendant testified as follows: “ THOMAS HOLMES received permission of me two or three times, and has been in several times talking to me about it.” Cross Examination: Question-“What land did he ask permission to dig on?” Answer-“The DUKE SMITH diggings. HOLMES came to me repeatedly and ?pretended to be my tenant of DUKE SMITH diggings. I think HOLMES was one of the men I had arrested.” This is all the evidence given at the trial of said cause. 1. The plaintiff requested the court to charge the jury as follows: The evidence offered by the defendants fails to show that STEPHENSON under whom they seek to justify their acts on the land, was the owner thereof, so far as the record title is concerned at the time this action was commenced or at the time the said act was done, but it does show that at that time the owner of the record title was one NICHOLS who derived title under ABRAHAM TUTTLE, the original patentee or TUTTLE himself. Which was Given. 2. The defendants having failed to establish the record title in Stephenson, in order to sustain their defense, they must show that STEPHENSON under whom they were acting, was nevertheless the former owner of the land. That is to say that he had a title to the land which would be good if not cut off by the tax title or which became good before this action was commenced, or the act herein complained of were done. This part of charges was refused, and the plaintiff then excepted to the refusal of the court to give the instruction in charge to the jury. 3. TUTTLE or NICHOLS, being then the owner of the record title to the land in question, STEPHENSON must, in order to be considered to be the owner or the former owner as against the plaintiffs tax title have succeeded in overthrowing in some way, TUTTLE or NICHOLS record title. Which part of charge was refused by the court and the plaintiff there excepted to the refusal of the court to give this instruction in charge to the jury. 4. To accomplish this the defendants must have established to your satisfaction by the testimony that STEPHENSON or those claiming under him went into actual possession of the land claiming title thereto under the deed from BEQUETTE and remained in such possession for ten years continuously at some time before the commencement of this action and after the date of the deed from BEQUETTE and such possession must have been open, notorious and without interruption. Which was refused and the plaintiff then excepted to the refusal of the court to give this instruction in charge to the jury. 5. If the jury find that within the three years next succeeding the recording of the tax deed, the plaintiff by himself or his tenants took peaceable and actual possession of the land in question, and was not disturbed in his actual possession, but was treated by STEPHENSON and his agents as in actual possession and reclaimed such actual peaceable possession from that time til the expiration of the said term of the year and was so ?held and recognized during that time he was not bound to commence any action to prevent the running of the statute of limitations against his tax deed provided that he so obtained and reclaimed such peaceable and actual possession for a reasonable portion of said three years to enable those claiming against his tax deed to bring suit against him to try the question of title. This part of the charge was refused and the plaintiff by his counsel excepted the refusal of the court to give the instruction in charge to the jury. The defendant then asked the court to charge the jury as follows: If the jury are satisfied from the evidence that the tax deed in question from Iowa County to C. R. MOFFETT which bears date February 3rd, 1968 and which appears upon the face of the record to have been recorded February 1st, 1868 was in fact made and delivered February 1st, 1868 instead of February 3rd , 1868, then such deed is void and your verdict will be for the defendant. Which was refused and the defense excepted to the refusal of the court to give the instruction in charge to the jury. The court then of his own motion instructed the jury as follows: The southwest quarter of Section 7, town 5, north, range 3 east was patented to ABRAHAM TUTTLE, a soldier in the War of 1812, said Warrant 27.444 having been issued to said TUTTLE and located upon said land. The Patent is dated 3 September 1847. After the issue of the warrant, viz. On the 24 June, 1846, TUTTLE gave a letter of attorney to BERNHARDT HEUER and another, authorizing either f them to locate his warrant upon any vacant government land and to receive the patent, and in his, TUTTLE’s name to sell the land and execute a conveyance therefore to the purchaser. On September 1, 1847, BERNHARDT HEUER as attorney in fact for ABRAHAM TUTTLE, conveyed this tract of land to PASCHAL BEQUETTE, and by direct and ___ conveyances from BEQUETTE, the same land was conveyed to CHARLES L. STEPHENSON on the 8 May, 1857. The alleged trespass for which the plaintiff sue were done by the defendant Henry, acting as the agent of said STEPHENSON. On the 3rd February, 1868, the County of Iowa conveyed the above named tract of land to C. R. MOFFETT for the nonpayment of taxes in the year 1857 tax sale in1858. The deed was recorded the same day. On the 15 April 1868, C. R. MOFFETT, by quitclaim deed conveyed the land to ALEXANDER WILSON. The defendant HENRY, as the agent of CHARLES L. STEPHENSON, on or about the 21st October, 1871, entered upon the land under a claim of right and did acts which will render him liable as a trespasser if the plaintiff WILSON was the legal owner of the land at the time. The deed from TUTTLE by BERNHARDT HEUER, his attorney in fact, to PASCHAL BEQUETTE dated September 1st, 1847 has been declared to be wholly void by the Supreme Court under an act of Congress that voided all conveyances made by a soldier who located a land warrant which conveyances were dated before the date of the patent. The conveyance to BEQUETTE is dated September 1, 1847. The date of the patent is September 3, 1847. The deed from TUTTLE to BEQUETTE being void, it follows that STEPHENSON, who claims under BEQUETTE obtains no legal ?t__ by virtue of conveyance depending upon BEQUETTE title alone. But, notwithstanding the invalidity of BEQUETTE’s title and that all persons claiming under him, it may be that STEPHENSON acquired a perfect title under the statutes of limitation. The plaintiff excepted so much of this instruction as is included in brackets-[If BEQUETTE or those several under him, in good faith went with the actual occupancy of the land and continued such occupancy for the ten successive years, such possession being exclusive, open and notorious, that all persons having an interest or claim upon the land must be presumed to have known it, and that they claimed under this written conveyances as against all other persons, such occupancy being for the purpose of mining or other ordinary use to which land may be applied by the ordinary industry of the country, then the title derived from BEQUETTE would become perfected in STEPHENSON, and he would be entitled to the benefit of such title.] The plaintiff excepted to so much of the instruction as is included in brackets. The [] begin at the words “But it is not necessary [But it is not necessary in this case for the jury to determine whether STEPHENSON’s title was actually perfected under the 10 years statute in respect to adverse possession.] But the tax deed to MOFFETT, though conclusive of title at the time it was executed may yet become void in case the party claiming title under the grantee from the government at any time within three years from the recording of the tax deed should remain in or go with actual possession of the land, and whether the defendant STEPHENSON or his agents were in such actual possession within the three years next after the recording of the tax deed is the controlling question in this case. The plaintiff by his counsel, excepts to the whole of this paragraph on instruction commencing at the words “But the tax deed” and continuing down to the words “in this case.” [It is not necessary, as stated before, for the jury to decide whether the title of STEPHENSON was perfected or not under a ten years actual possession under the conveyance to BEQUETTE and direct and ___ ____ ___________ from him till they reached the defendant’s principal STEPHENSON. If you find that STEPHENSON or his agent on or after the recording of the tax deed was in the actual possession of the land within three years next after the recording of the tax deed claiming the same under conveyances from BEQUETTE in good faith, this possession avoids the plaintiff’s tax title.] The plaintiff excepts to so much of this paragraph as is included in these []. That is to say, beginning at the beginning and continuing own and including the words “this possession avoids plaintiffs title.” [In such case the plaintiff in respect to Stephenson or his agent would be a mere stranger without any title and can bring no action for trespass against the defendant acting as such agent.] The plaintiff by his counsel, excepts to so much of this paragraph as is included in brackets []. This action is commenced by the plaintiff more than 3 years after the recording of the tax deed under which he claims the tax deed becomes void as to the conveyance of title if the party claiming under it allows the party claiming in good faith to be invested with the government title to remain in the actual possession or to enter into the actual possession of the land at any time within the three years next after the recording of the tax deed. In such case, the claimant under the tax deed should bring his action of rejectment or he forfeits the absolute title that his tax deed originally conveyed.] The plaintiff excepts to so much of this instruction as is included in brackets therein, that is to say, from the beginning with the words “The tax deed becomes void” and continuing to the end of the paragraph. You may inquire what must be the character of the possession which will avoid the tax deed to MOFFETT and that of the plaintiff claiming under him. In answer I will say that if STEPHENSON or his agent or tenant openly occupied the land and mined thereon for the purpose of obtaining lead ore for any part of the three years next after recording of the tax deed, this will bar the title under such deed, and if the land was open for mining to all miners who might choose to occupy it for that purpose paying the customary dues (and miners did so mine on the land) their occupancy should be regarded as the occupancy and the mining of STEPHENSON, whose agent the present defendant HENRY is. In such case, your verdict must be for the defendant. But if you find the land was vacant and unoccupied by any person under the authority or permission or consent of STEPHENSON or his agent for three years next after the recording of the tax deed, your verdict should be for the plaintiff. The jury then returned the following verdict: “we the jury, find for the defendant.” F. LEVAKE FIRENDER? The plaintiff by his counsel made the following motion for a new trial as follows: And now comes the said plaintiff in his own proper person and by W. E. CARTER, his attorney, and moved the court now here upon the minutes of the Court to set aside the verdict of the jury in this case and grant a new trial thereof for the reasons following” 1st. Because the court erred in rejecting testimony offered in the trial of the cause on the part of the plaintiff. 2nd. Because the Court erred in admitting evidence before the jury on the trial of this cause, testimony offered by the defendants and objected to by plaintiffs counsel. 3rd Because the court erred in refusing to give in charge to the jury the instructions asked by plaintiff’s counsel. 4th Because the court erred in the general charges to the jury. 5th Because of other errors apparent in the face of the record. October 7th, 1875. ALEXANDER WILSON, plaintiff W. E. CARTER, his attorney Overruled, new trial denied. Whereupon, judgement was rendered and entered in accordance with the said verdict returned by jury. Appealed by plaintiff. Eventually the Supreme Court reversed the decision. A Chronology of the Events Listed in Wilson vs Stephenson Page Date Event 22 1827-1838 Augustus Dodge testified that he knew the land in dispute between these years 26 May 9, 1830 Paschal Bequette first lived in Diamond Grove. 33 1834 William T. Henry testified that he has lived in Mineral Point since 1834. 36 1834 Duke Smith was shot in 1834. 39 1834 Louis Poquette testified that he knew the land in 1834. 39 1837-1840 Poquette said he first started digging with Bequette’s permission, “34 years ago.” What year was testimony? 20 July 27, 1842 Tuttle applies for patent rights under Act of 1842. 43 1845 In 1875, Charles West testified that he first received permission from Bequette to dig, “some 25 or 30 years ago.” 6 June 24, 1846 Abraham Tuttle secures War of 1812 patent on land. 44 Fall of 1846 Michael I. Carney first mined on the disputed land. He received his permission from Bequette. 3 July 24, 1847 Stephenson in possession and in fee simple of this land. 6 September 1, 1847 Bernhardt Heuer appointed attorney for Tuttle. 6 September 1, 1847 Heuer conveyed title of land to Paschal Bequette. 6 September 3, 1847 Deed of patent bears this date. 33 April 4, 1848 Tuttle conveyed title of land to B.S. Foster. 31 June 29, 1848 Last will of George Collier, written. 33 October 20, 1849 B.S. Foster conveyed title of land to Walter Nicholas. 43 1850 Charles West said he first started mining here. Also said that a man named Ferris showed up the next year and claimed that Bequette was not the owner, that he Ferris, held the warranty deed [also page 44.] 45 1851 John Inch testified that he “bought in” on partnership with Charles West. 26 April 15, 1852 Paschal Bequette leaves for California. 31 July 8, 1852 Will of George Collier recorded. 34 1853, 54, 55, 56 Taxes on land paid by Collier. 38 1853 Vingo said Charles West mined diggings in 1853. 12 May 8, 1854 Charles Stephenson in actual possession of the land. 34 1854 Wm. Henry had land surveyed. Men found working there were: Charles West, Ralph Penhallagon, Louis Poquette, Joseph Jones, Samuel Perry, senior and junior, George Chamberlain, and William Hughes. All paid rent. 43 1855 Charles West testified that Bequette made survey this year. 45 1855-1857 Inch said the best “dirt” was dug out in 1855- 1857. 3 1856 Wm. T. Henry first began representing Charles Stephenson. 6 May 8, 1857 Paschal Bequette conveyed title of land to Stephenson. 32 May 8, 1857 Collier heirs convey title to Stephenson. 6 1857 Non-payment of taxes by Stephenson. Wilson admits he had not paid taxes on the land since 1857 [page 18]. 6 Sept. 28, 1858 Tax sale of land due to non-payment of taxes, Moffett buys. 34 1858, 59 Per Wm. Henry, taxes paid by Whittlesey. 3 May 8, 1859 Charles Stephenson re?purchased the disputed land. 34 1859 Thomas Holmes, Sr. died. 34 May 2, [or 9] 1860 “Dutchman’ paid for rent of hay bottom [was Haubris.] Also page 37. 45 1860 Inch paid dues to Wm. Henry in 1860 39 1860 Louis Poquette testified that he paid some rent to Henry. 39 1860 Louis Poquette testified that he struck a ‘? bunch” and that Bill Welsh worked with him that year. 34 May 19, 1860 John Inch paid mineral dues. 34 July 23, 1860 Peter Haubris paid mineral dues. 34 1860-1874 Taxes paid by Wm. Henry for Stephenson. 15 April 1861 C.R. Moffett transferred the property to Alex Wilson? 39 1861 Louis Poquette testified that he worked mining on Weidenfeller land this year. 39 1862 Louis Poquette testified that he worked on Weidenfeller land this year. 39 1863 Louis Poquette testified that he mined on Judge Cothren’s land this year. 34 1863 Wm Henry hired Vail to watch the land, collect the rents. 40 1863-64 Louis Poquette testified that he helped Henry Madden do survey. This survey was recorded in March 1864. 34 between 1863-65 Wm. Henry had some men arrested. Charles West was one. 43 “ Charles West testified that Henry never had West arrested. 36 “ Probably same time frame when Wm. Henry had Thomas Holmes Jr. arrested. 34 May 26, 1864 John Roland paid mineral dues. 39 1864 Louis Poquette testified that he mined on Judge Cothren’s land this year. 40 1864 or 65 John Carns testified that he mined on Duke Smith diggings. 39 1865 Louis Poquette testified that he mined on Judge Cothren’s land in this year. 34 1865 Vail died. Vingo hired to watch the land, collect the rents. 45 1865 This was the last year that John Inch dug on disputed land. 37 1865 or 66 Vingo testified that following men were working Duke Smith diggings: Poquette and “Partner”, sometimes his son, West and sons, Carns. 39 1865 or 1866 Vingo said the only men working here then were Poquette, Carns, Cooley, and maybe Charles West. 39 1865 or 1866 Vingo said Carns was there when he, Vingo was first hired. 38 1866, 67, 68, 69 Vingo was not sure he saw Charles West digging in these years. 39 1866 Louis Poquette can’t be sure he dug in winter of 1866 40 1866 He couldn’t remember if he dug on Judge Cothren’s land or Weidenfeller’s, or both. 34 Dec. 7, 1866 Charles West paid mineral dues. 38 July 22, 1867 Vingo collected dues from Charles West. 38 October 22, 1867 Vingo collected from Peter Cooley. 42 Winter 67 Tom Holmes testified he saw only Charles West mining at this time. 4 February 3, 1868 C.R. Moffett pays taxes to acquire land deed, county conveyed title of land to him. 39 1868 Louis Poquette testified he did not dig this year. 41 May or June, 1868 Wilson saw no one mining upon a survey in these months. 6 April 15, 1868 Moffett filed quitclaim deed, conveyed land title to Wilson. 38 Summer, 1868 Cooley dug at D.S. diggings. 42 Winter 1868 Tom Holmes testified he only saw Charles West mining at this time. 41 September 1868 Wilson saw no sign of mining since his last visit, June. 35 1868, 69 Carns, Phillips, West and Poquette dug at Duke Smith diggings, per Wm. Henry’s testimony. 38 1868, 1869, 1870 Vingo thinks Tom Holmes, Jr. dug in these years. 39 1868, 1869 Vingo sure that Tom Holmes was working there these years 38 Winter of 1868 Vingo saw Carns digging there. 38 1868 or 69 Vingo saw Lovell digging there. 38 1868 or 69 Vingo saw Weidenfeller digging there. 38 April 7, 1869 Vingo collected from Charles West. 38 April 15, 1869 Vingo collected from Louis Poquette. 40 1869 Louis Poquette testified that he did not sink a shaft in ’69. Lockett was helping him in ’69. 37 April 24, 1869 Stephenson sold 100 acres to Weidenfeller. 38 June 5, 1869 Vingo collected from Charles West. 34 June 28, 1869 Charles West paid mineral dues. 42 1869 Thomas Holmes, Jr. testified that he moved to land adjoining the disputed land in middle of July. 39 1869 Louis Poquette saw digging, West, Cooley, Weidenfeller, Carns, and Phillips. 41 1869 Wilson claimed to have ridden survey in this year and saw no one mining. 29 Fall 1869 Adele Dodge testified she burned legal papers when she moved. 40 1869 Weidenfeller testified that West stopped mining on Weidenfeller’s land after 1869. 40 1869 Weidenfeller saw no one digging at Duke Smith diggings except West in 1869. Saw no one else but West in 1870, 1871, not on Weidenfeller, but in Duke Smith diggings. He saw a Carn loading mineral at West’s in April or May 1869. 40 1869 and 1870 John Carns testified that he dug at Duke Smith diggings. 41 Spring of 1870 Wilson claims he licensed Hildreth to use the water on the land in spring or summer of 1870. 46 May or June 1870 Hildreth testified that he was working under permission from Vingo when Wilson told him that he, Wilson owned the title to the land, and that dues were to be paid to him. 43 1870 Charles West testified that he was sick, did not mine for 3 years. 38 Fall of 1869, 1870 Vingo licensed Tom Holmes to cut hay in the hay bottom. 38 1869, 1870 Vingo believed Peter Cooley dug in these years. Believed Cooley and Weidenfeller worked together. 39 Winter of 1869 Louis Poquette testified he dug all the winter of 1869. 17 November 13, 1869 Quitclaim deed recorded over to Alex Wilson. 39 1870 Louis Poquette saw these men digging: West, Cooley, Weidenfeller, Carns and Phillips, and Hildreth with R.D. Vivian. 42 1870 Tom Holmes testified that Louis Poquette mined on Cotton or Cothren and John Hutcheson land in 1870. 18 1870 Moffett did not like the investment, too likely to be disputed. 19 January 1870 Ejectment suit. 19 1870 Wilson thinks he leased mining rights to Holmes, Hildreth, West told Wilson he dug there in 1870 under Henry. 38 1870 Vingo said Hildreth dug in 1870, but did not in 1871. 39 Winter of 1870 Louis Poquette testified he dug part of Winter 1870. 38 1870 or 1871 Vingo says Phillips asked permission to dig there. 38 1870 or 1871 Vingo collected from Peter Phillips. Also page 39. 38 1871 Vingo found Cooley digging there and several times before 39 1871 Louis Poquette testified that he did not dig this year. 39 1871 Louis Poquette saw these men digging: West, Cooley, Weidenfeller, Carns and Phillips 38 1870, 1871 Carns and Phillips dug at Duke Smith diggings. 19 1871, 1872 West paid mining dues to Wilson. 34 Mar. 27, 1871 Penhallic paid mineral dues. 35 March 27, 1871 Brady paid dues. 41 1871 Wilson claims he never saw any sign of mining on the land before February 1871. 19 October 20, 1871 Wilson dug 100 to 150 postholes, set 100 posts, added 15 rods of fencing 1 October 21, 1871 Wilson claims John Poquette entered premises of disputed land. Wm. T. Henry had a balloon frame, 1 story house 12x14 {page 17], built on said land. 6 October 21, 1871 John Poquette moved into house and dug postholes. 1 October 23, 1871 Wilson swears out complaint for the first time in court. 3 October 23, 1871 Hugh Connoughton with force, did break and enter house. 41 1873? Thomas Holmes, Jr. testified that he had known the land for 30 years. He moved to it 8 years previously in July. 23 March 24, 1873 Affidavit taken from Augustus Dodge in Burlington, Iowa. 26 September, 1873 Additional testimony from Dodge 26 July 16, 1873 Affidavit from Paschal Bequette, also page 29. 9 October 20, 1875 Motion for a new trial, by Wilson. INDEX Names Page Bennett, Mathew, Notary, Iowa County Bequette, Col. Paschal, Diamond Grove Brady, ____ Bradley, N.O., Commissioner, Tulare Co, CA Cairns [Carns], John Carney, Michael I. Carter, W.E. Chadwick, Alfred, St. Louis, MO Chamberlain, George Collier, George, St. Louis, MO Collier, Sarah A. “ Connoughton, Hugh Cooley, Pete Cothren, Judge Cotton?, ___ Dodge, Adele Dodge, Augustus C., Burlington, Iowa Esli, Nicholas Ferris, ___ ?Firender, Levake Foster, B.S. French, B.B., Washington, DC Haubris, Peter Henry, George W. Henry, William T. Heuer, Bernhardt, Fairfield Iowa Hildreth, Levi Holmes, Thomas, Sr. Hughes, William Hutcheson, John Jackson, Richard Jones, Joseph Inch, John Lanyon, Cyrus Little, William Lockett, ____ Loveland, ___ Lovell, ____ Lyons, William C. of Fairfield, Iowa, Stockton, CA Madden, ___ Mielk, George Mills, J.T. Moffett, C. R. Nichols, ___ Nicholas, Walter Otis, Maj. George H., Clerk, B. of Super. Iowa Co. Ownes, Robert G. Penhallagon, Ralph Penhallic, Ralph Perry, Samuel, Jr Perry, Samuel, Sr. Phillips, Peter Poquette, John Poquette, Louis Predell, Edward, St. Louis, MO Prisk, John Richards, Alfred Roland, John Smith, Duke Smith, Henry Smith, John M. Spensley, Calvert Stephenson, Charles s. or L. of Galena, IL Stewart, William W., Washington, DC Tracy, Samuel K, Commissioner, Iowa state Tuttle, Abraham C, of state of Maine Vail, ___ Vingo, John Vivian, R. D. Weidenfeller, John Welsh, Bill West, Charles Whittlesey Wilson, Alex File at: http://files.usgwarchives.net/wi/iowa/court/poquette9gwl.txt This file has been created by a form at http://www.genrecords.org/wifiles/ File size: 158.4 Kb