Kimball vs. Adams and others. LYON, J. In the opinion heretofore filed in this cause, it is said that, under the provisions of chapter 227, Laws of 1881, the costs in the circuit and county courts must be paid by the unsuccessful contestants of the will of the deceased. The costs there mentioned must be understood to mean the costs of the contestants in those courts. There is nothing in chapter 227 which prevents either court, in its discretion, from adjudging that the costs of the proponent be paid out of the estate of the deceased. The judgment of this court herein contains no direction to the circuit or county court concerning the proponent's costs, but leaves those courts free to exercise a sound discretion in that behalf. Hence no modification of the judgment is necessary. The motion to modify the same will be denied, without costs. By the Court. So ordered. KIMBALL VS. ADAMS and others. April 26-June 22, 1881. (1) When fence, built by A. on B.'s land, becomes part thereof. (2) Title to land: Removing cause from justice to circuit court. 1. Where a fence is built, as a permanent structure, by one person upon the land of another without any agreement between the parties as to a right of removal, it becomes a part of the realty; and the owner of the land may remove it and dispose of the material at his pleasure. This rule applies to rails laid into a fence, though not attached to the land otherwise than by their weight; and it is not affected by the fact that the person who built the fence believed that he was erecting it on his own land. 2. Where an answer in justice's court pleads title to land, and defendant tenders the proper bond, and the justice files the papers in the cause in the circuit court, that court becomes possessed of the cause, and may proceed therein to judgment, under sec. 3622, R. S., although the justice has not certified such papers and his docket entries as required by sec. 3621. Kimball vs. Adams and others. APPEAL from the Circuit Court for Portage County. On the 24th of July, 1879, the defendant Glinsky obtained title to forty acres of land upon which there was at the time a fence standing, near the line between that forty and the plaintiff's land, and nearly parallel therewith. The fence was removed in November, 1879, by Glinsky, with the aid of the other defendants, and converted to other purposes; and thereupon this action was brought, in justice's court, to recover the value of the fence, on the ground that it was built by plaintiff on what he supposed to be the line between his land and said forty-acre tract, and hence was personal property. The defendants pleaded title to the forty in Glinsky, claiming that the fence was upon and a part of it, and that he bought it in good faith as a part of the land; and upon their filing a bond such as is required by sec. 3620, R. S., the justice made an entry in his docket that the cause was "taken to the circuit court," and filed the papers in the cause in the office of the clerk of that court, "but did not certify and return the same. Upon the trial, the judge submitted the case to the jury on the theory that it was an action of trover, and that the plaintiff could recover even if the fence was by mistake built upon the forty; and he expressly refused to instruct the jury to the effect that, if the fence was on Glinsky's land, then it became part of the realty, and plaintiff could not recover, especially if Glinsky was a bona fide purchaser. There was a verdict for the plaintiff; a new trial was refused; and, from a judgment pursuant to the verdict, defendants appealed. For the appellants there was a brief by Jones & Sanborn, and oral argument by Mr. Jones. The cause was submitted for the respondent on the brief of 0. H. Lamereux. The following opinion was filed May 10, 1881: CASSODAY, J. By the plea of title, the giving of the bond, and the filing of the proceedings and papers in the office of Kimball vs. Adams and others. the clerk of the circuit court, that court became possessed of the cause and had the right to proceed therein the same as if it had been originally commenced in that court. Section 3622, R. S. There is no pretense that the plaintiff built the fence under or in pursuance of any agreement for its removal, or that it should remain personal property. The building of a fence upon land as a permanent structure, in the absence of any such agreement, would necessarily convert the material of which it was built from personal property into realty. Murray v. Van Derlyn, 24 Wis., 67; Thayer v. Wright, 4 Denio, 180; Mott v. Palmer, 1 Coms., 564. Rails laid into a fence upon land are a part of the freehold, even though not otherwise attached to the land than by their weight. Smith v. Carroll, 4 G. Greene, 146; Boon v. Orr, id., 304; Mitchell v. Billingsley, 17 Ala., 391. The mere fact that the fence in question was built by the plaintiff upon lands not his own, by mistake, did not prevent its becoming a fixture to the real estate as soon as it became attached to the soil. Seymour v. Watson, 5 Blackf. (Ind.), 555. Mr. Ewell says: "With respect to erections and annexations made by a stranger, with his own materials, upon the soil of another, without his consent, the rule of law . . as between the owner of the soil and the one making such annexations, quite uniformly applied, is, that the owner of the materials loses his property, because he is presumed to have voluntarily parted with it, or to have intended it as a gift to the owner of the soil." Page 57. To the same effect are the following authorities: Crest v. Jack, 3 Watts, 238; First Parish v. Jones, 8 Cush., 189; Goddard v. Bolster, 6 Me., 427; Huebschmann v. Mellenry, 29 Wis., 655. The fence in question having become a fixture, and the title to it having passed to the defendant with the title to the forty, it follows that he had the legal right to pull it down and dispose of the material as he pleased. This view was taken of the question Ross and another vs. Heathcock and others. by BRONSON, C. J., in Thayer v. Wright, 4 Denio, 181, and we regard it as good law. By the Court.-The judgment of the circuit court is reversed, and the cause is remanded for a new trial. A motion for a rehearing was denied June 22, 1881. Ross and another vs. HEATHCOCK and others. May 13-June 22, 1881. Mining Rights. 1. A conveyance, for the purpose of mining thereon, of certain lands described by government subdivisions, "and known as the H. range,' held not to give the grantees the right to mine upon another government subdivision belonging to the same persons, to which "the H. range" of mineral was afterwards found to extend. 2. The other written instruments in this case (described in the opinion), held not to give plaintiffs the right to mine on the tract of land in dispute; and the oral evidence held insufficient to establish an oral contract giving them such a right. APPEALS from the Circuit Court for Iowa County. Action to perpetually enjoin the defendants from mining on a certain range known as the "Heathcock Range," on the northeast quarter of the northwest quarter of section 17, town 5, range 2 east, in Iowa county, and from in any way interfering with the free mining thereon by the plaintiffs. The answer of the defendants denies the plaintiffs' right to mine on said range in the tract above described, and, by way of counterclaim, alleges that the defendants are the absolute owners of said tract, and have the sole right to mine thereon; and that the plaintiffs have worked the said range up to and across the division line between their own land and the said tract, and threaten to follow and continue to work the range Ross and another vs. Heathcock and others. upon that tract; and it prays judgment that plaintiffs be perpetually enjoined from following said range onto said tract. The evidence given upon the trial will sufficiently appear from the opinion. Certain questions of fact were submitted to a jury impaneled for that purpose. The court filed its findings of fact and conclusions of law, and rendered judg ment that the plaintiffs were entitled to the exclusive right of mining on the Heathcock Range, in the tract above described, upon the terms and conditions that, and so long as, said plaintiffs should pay to the defendants, as rents, a certain portion of the ores mined thereon. The defendants appealed from such judgment. The plaintiffs appealed from that part thereof which limited their right to mine by the condition of the payment of rents. For the plaintiffs there were briefs by Henry & Smith, Lanyon & Spensley, P. A. Orton and Moses M. Strong, and oral argument by Mr. Strong and Mr. Orton. They contended, among other things, that the contract of July 13, 1859, and the payment of the price therein stipulated, gave to the Linden Company an equitable title to the Heathcock range of ore in the disputed forty-acre tract, and entitle the plaintiffs, in whom such title is now vested, to maintain this action. In construing this contract, the object will be to discover the intention of the parties expressed therein; and for this purpose the court will take into consideration the surrounding circumstances attending its execution. 1 Greenl. on Ev., §§ 277, 287; Jackson v. Clark, 7 Johns., 217; Peck v. Mallams, 10 N. Y., 532; Pike v. Monroe, 36 Me., 309; Brannan v. Mesick, 10 Cal., 95; Lane v. Thompson, 43 N. H., 320; Smith v. Packhurst, 3 Atk., 136; Shep. Touch., 253, note 1. It is evident that the interest intended to be conveyed was not the land itself, or its surface, but only the ores beneath the surface, with the right to enter upon the land for the purpose of raising them. The Heathcock range had for a long time been discovered and worked on the lands of the Heathcocks, |