¶1(concurring specially). I am unable to agree with my Colleagues in their criticism of the opinion in Zuleger v. Zeh, as I am firmly convinced that the court in that case placed the only construction upon what is our section 47, -C. C. P., that the plain English therein contained will permit of. My Colleagues construe this section as though the phrase “so included” found therein read “so claimed.” It might be better if the Legislature had used the phrase “so claimed',” but that does not justify us in disregarding the plain language used by the lawmaking department.'
¶2Section 48 prescribes the essentials of that possession which will be deemed adverse where possession is taken under claim of right based on a written instrument. iSection 47 prescribes the period during which such adverse possession must continue to overcome the presumptions declared by section 46, and it declares the extent of the territory to which the adverse possession applies. If the possession is taken under claim founded on a written instrument, and the “possession of the premises included in such instrument” continues 20 years, then “the premises so included” (clearly meaning the premises included “in such instrument”) .shall be deemed to have' been held adversely. Plainer English could not have been used, and, so far as I have been able to ascertain, no case is to be found wherein any court has given to this section the construction put upon it by my Colleagues. Not a one of the cases which they have cited, except Zuleger v. Zeh and Eldridge v. Kenning, have the remotest bearing upon the proper *75construction to be given section 47. They concede that Zuleger v. Zeh holds against their conclusions. A careful reading of the opinion in Eldridge v. Kenning discloses that such opinion is also directly opposed to their views. The facts in that case were on all fours with those in this one; yet the court frankly. based its decision on section 372, C. C. P. New York (our section 49, C. C. P.), saying:
“It is said that the conveyance under which the plaintiff claims did not purport to include the strip of land in question, but, in terms, conveyed only the east half of lot No. 4, and therefore bounded the land conveyed by the true center line of that lot. which is conceded to be the east line of the strip in question. All this is true, but it does not render the plaintiff’s possession any the less ‘adverse,’ within the meaning of the statute of limitations, upon the undisputed facts of this case. Such adverse possession as will ripen into title in 20 years need not be under color, but only under claim, of title. 'Section 372 of the 'Code of Civil Procedure prescribes what is necessary to constitute an ' adverse possession in favor of one whose claim is not founded upon a conveyance or decree which actually includes the premises in question. The provision is as follows: ‘Eor the purpose of constituting an adverse possession by a person claiming title not .founded upon a written instrument or a judgment or decree, land is presumed to have been possessed and occupied in either of the following cases: … (1) Where it has been protected by a substantial inclosure; (2) where it has been usually cultivated or improved.’ In this case both of the conditions prescribed concur, and an undoubted case is made of a possession in the plaintiff and her grantors, adverse to the legal title, for a period of more than 40 years, whereas by section 368 of the same statute such a possession for the period of 20 years is sufficient to overcome the presumption in favor of the owner of the legal title.”
¶3The above italicizing is ours. In Pope v. Hanmer, 74 N. Y. 240, it was held that no “adverse possession” could be claimed ' under sections 82 and 83, C. C. P., now sections 369 and 370, C. C. P., of that state (our sections 47 and 48), of any land not covered by the description in the deed; and it was held, as in Eldridge v. Kenning, that actual adverse possession beyond the boundaries of the tract described in the instrument under which *76right of possession was claimed would give title under their sections 84 and 85, now sections 371 and 372 (our sections 49 and 50). The writer of the opinion says:
“It seems to me incongruous to say that a person claims title under a written instrument to land not included in the instrument, and the language of section 82 [our section 47] repels such an idea.”
¶4Under the New York decisions, appellant having been in actual occupation up to the fence — a substantial inclosure sufii'cient to satisfy our section 50 — such occupation was adverse and gave title by adverse possession under sections 46 and 49. '
¶5Moreover, it seems clear to me that there was such acquiescence in this fence as the boundary to now bar respondent from claiming beyond such fence. Lehman v. Smith, 168 N. W. 857.