Treat and another vs. Hiles. held that no interest in the land passed to C. by the contract. A mere parol license to dig a well on another's land, and carry the water in pipes to his own land, conveys no interest in the land. Houston v. Laffee, 46 N. H. 507. If one agrees with the owner of the land to get a railroad located and constructed on it, and to lay it off into lots and make sales, in consideration of half of the profits above cost, he obtains no interest in the land. Lesley v. Rosson, 39 Miss. 368. "A colliery and a landed estate are considered quite different by the courts; a colliery being always considered as a trade, the profits of which accruing from day to day belonging to those who work it for the profits thereof." Steward v. Blakeway, L. R. 4 Ch. App. 603. "Real estate not purchased by partnership funds, although used for partnership purposes, does not become partnership property, and the title is not affected by such use." Alexander v. Kimbro, 49 Miss. 529; Frink v. Branch, 16 Conn. 261. "The authority to do an act or series of acts upon the land of another, such as to hunt, remove stone, or cut down trees, is a mere license, and conveys no interest in the land." Browne, Stat. of Frauds, § 26, and cases cited in note. "A parol license to dig minerals on the land of the licensor is valid." 3 Pars. Cont. 39. A third person built a house on the mortgaged premises for the mortgagor on the parol agreement of the mortgagee that he should be paid for it, or have a lien upon it in preference to the mortgage. The agreement was held valid. Godefroy v. Cald well, 2 Cal. 489. The sale of a mining claim does not affect the title of the land. Hitchens v. Nougues, 11 Cal. 29. The owner of the land verbally contracted with two others that they should dig and prospect for coal, and do all the other work to open the mine, and then that they would raise and sell the coal jointly, the profits to be divided equally. It was held a partnership in mining like any other partnerships, only it was not founded on the delectus personæ, and VOL. 68-23 Treat and another vs. Hiles. that it carried no interest in the land. Ibid.; Duryea v. Burt, 28 Cal. 569. A verbal agreement between two or more to explore and locate and work lodes on government land is not within the statute. Murley v. Ennis, 2 Colo. 300. A verbal agreement that plaster lands and a plaster-mill should be bought and owned by A. and B., and worked by them as partners, is within the statute; but not so if the land was to be owned by one of them only. Brosnan v. McKee, 59 Mich. 107. To this case there is a note of cases of Snyder v. Wolford, 33 Minn. 175; Carr v. Leavitt, 54 Mich. 540; Miller v. Kendig, 55 Iowa, 174. These cases hold that when one person selects lands and contracts with another to purchase and hold them in his own name, and when they are sold the net profits to be divided between them in consideration of his services, the contract is not within the statute. The plaintiff was the owner of a limekiln, and it was verbally agreed that the defendant should fill it with limestone and furnish the wood to burn it, and the lime to be equally divided between them. It was held to be a partnership, and the defendant was liable for taking more than his share. Musier v. Trumpbour, 5 Wend. 274. A verbal agreement of copartnership was entered into by several persons for the purposes of developing plaster-beds on certain lands, and for getting out and selling plaster, and for procuring the title to the lands. The business went on until the lands were finally bought and paid for by the profits of the concern. It was held not to be within the statute. Godfrey v. White, 43 Mich. 171. A sale of shares of a mining company working a mine does not convey any interest in the land, but only in the severed mineral ores, machinery, and personal effects. Rog. Mines, 428. A partnership for the purpose of mining for lead ore, irrespective of title to the lands, may be formed by parol agreement, and will be treated, in respect to the ore raised, like any other partnership. Sauntry v. Dunlap, 12 Wis. 404. Treat and another vs. Hiles. These cases clearly illustrate the principles underlying this contract or partnership in this case. There can no case be found, in my opinion, of similar facts, where it has ever been held that such a contract was within the statute. But there are many respectable authorities which hold that such a contract, even if it went further and provided that the lands themselves should belong to the partnership or be held in trust for the partnership for the purpose of mining or quarrying or milling, etc., was not within the statute. But such is clearly not this case; for there is no provision made for the purchase of the land or any interest in it from the defendant, although there is an averment in the complaint that the defendant held it in trust for the purpose of such quarrying business. This can only mean that the land was to be used by the partnership. only for such purpose. It appears very clear, both from reason and authority, that this contract is not within the statute above referred to, and is therefore valid if it could be performed within one year, and not within the other section of the statute. Was this a contract which by its terms was not to be performed within one year? If it was a contract to form a partnership for the above purposes merely, then it is very clear that it was to be performed at once and without any delay. Hill v. Palmer, 56 Wis. 123. An agreement to form a partnership to get out stone and construct certain public works was so far performed that the firm entered upon the business. The contract was held not to be within the oneyear statute. M'Kay v. Rutherford, 13 Jur. 21; Hoare v. Hindley, 49 Cal. 274. But, in any view of the case that can be taken on the facts, a contract to form a partnership, or a contract of partnership entered upon nominally and then violated before anything has been done under it, is not within this statute. The identical point would seem to have been decided by this court in Ganter v. Atkinson, 35 Wis. 48. That was a verbal partnership agreement to work Treat and another vs. Hiles. a certain mine. They were to begin at a certain point on the land described, and "to have the exclusive right to work and take out all ore found in the drift or in the crevices or openings between the line of the drift and the east boundary line of the land." It was not known, and could not be known, how long it would take "to take out all of the ore" in that district, but it might have been supposed that it would take a very long time and the ore to be nearly exhaustless, and was evidently supposed to be a very large and valuable enterprise. But it was sufficient that it was not known, and that the contract might be fully performed within the year. The question in that case was not under this statute, but under the exception to the first above section as of a lease "for a term not exceeding one year," and this court held that the contract was such a lease, and that it did not appear that the term would exceed one year. The question in this case of very similar facts, is the same in principle. That contract was held to be a lease rather than a license, because it was exclusive of the owner of the land, and valid because the term might end within one year. A sale of property, with an agreement that the title should remain in the vendor until it was paid for, was held not to be within the statute, in Esty v. Aldrich, 46 N. H. 127. Although the money was payable at once, yet the time within which it might be paid was indefinite. A. gave B. an equitable interest in a patent-right, and B. was to make the machine practicable, and introduce it into the markets, and then they were to be tenants in common of the right. This contract was verbal, and held not to be within the statute. Blakeney v. Goode, 30 Ohio St. 350. "It did not appear that the contract could not be performed within one year." Greene v. Harris, 9 R. I. 401. A contract was to take effect at a certain date and continue as long as both parties were satisfied. Held not to be within the one-year statute. Sherman v. Champlain Treat and another vs. Hiles. Transp. Co. 31 Vt. 162. This is precisely the case with all partnerships of unlimited time. If the time of performance depends upon a contingency which might happen within the year, the contract is not within the statute, such as a promise to forbear suit as long as a certain person should live. Wells v. Horton, 4 Bing. 40. The cases in this court hold that the contract must be such that it cannot be performed within one year, to be void under this statute. Rogers v. Brightman, 10 Wis. 65; Heath v. Heath, 31 Wis. 223; Murray v. Abbot, 61 Wis. 198. Besides this, many of the cases in this court hold that if the contract has been performed within the year by one of the parties, it is taken out of the statute. McClellan v. Sanford, 26 Wis. 595; Coyle v. Davis, 20 Wis. 564; Jilson v. Gilbert, 26 Wis. 637. It is true that the complaint probably exaggerates the vastness and unlimited extent of this quarry, and on information and belief it is stated that it is exhaustless. But this was a mere strong expression of an expectation of great and lasting profits, to swell the damages in the case. But, in the nature of things, the parties could not have known, when the contract was made, that this quarry, so far as any valuable stone in it was concerned, would not be exhausted within one year. It had not been opened yet to ascertain to what extent and for how long a time it might be profitable to work this quarry. It was a partnership that might be dissolved by many contingencies, and the time of its continuance was unlimited. But I have pursued this subject far enough and much further than necessary, and have made this opinion probably quite too long already. But the questions are very important, and there ought not to be any mistake made about the law in such a case. I have given these questions more attention, and examined the authorities more fully, than might appear to have been necessary, because the learned. and distinguished counsel for the respondent, with his usual |