Whitney v. Morrow , 50 Wis. 197 ( 1880 )

Cole, J.

As we understand the decision of the supreme court of the United States (see 95 U. S. B., 551), there is leally no open question presented on this record. That court distinctly decided that, if there was no military occupation of the premises in controversy when the confirmatory act of April IT, 1828, was passed, the title of Gardapier became perfect, by force of the confirmation, to the entire tract lying between tract No. 1, confirmed to Jacques Porlier, on the north, and tract No. 2, confirmed to Louis Grignon, on the south, commencing oh the river, and running bach eighty arpents. The vitál question which the court left open for further litigation was, whether or not the land clamed by Gardapier was actually occupied for military purposes at and before the passage of the confirmatory act. The military occupation, the court held, was a fact to be established or shown by parol proof in the ease.

It is true, the court was not called upon to decide, nor did it decide, upon whom lay the burden of proving the fact that the land was actually occupied for military purposes, so as to defeat the effect of the confirmatory act; but we suppose upon principle the onus was upon the plaintiffs, who affirmed the fact; for the general ruléis, “that the-obligation'of proving any fact lies upon the party who substantially asserts the affirmative of the issue” (1 Greenl. Ev., §74); and we see no reason for exempting the plaintiffs from the operation of this rule. According to tbe decision just referred to, tbe grant tools effect and passed tbe title, unless tbe lands were occupied for military purposes so as to come witbin tbe reservation or proviso. Now, on tbe trial in tbe court below, no evidence was offered on either side to show tbat tbe land was occupied by tbe United States for military purposes previously to or at tbe time of tbe passage of tbe confirmatory act; and, in the absence of' all proof upon tbe subject, we cannot presume tbat it was so occupied. As an essential part of their case, the plaintiffs were, bound to prove tbe fact of such occupancy in order to defeat tbe force of tbe confirmatory act, as construed by tbe supreme court; and this they did not attempt to do. Under the circumstances, therefore, there was no error in the circuit court directing tbe jury to find for the defendant.

By the Oourt.— Judgment affirmed.