offered rebutting testimony sufficiently strong to have overcome defendant’s testimony, as we think would not have been at all difficult to do. Then in the hypothetical case the finding of the trial court as to the usage must have been the exact opposite of that which is before us. But shall so important a matter as the existence or nonexistence of a general usage of language or symbol writing in describing land turn upon the varying financial abilities of suitors, or the uncertain vigilance and skill of counsel in arraying testimony, where the amount of testimony, from the nature of the case, is practically inexhaustable? There is, we think, practically no limit to the number of witnesses pro and con who will honestly testify to the result of their personal experiences and observations as to the prevalance and extent of the custom. In one case the affirmative side will preponderate, and in the other the negative. But to place the public revenues and titles to land upon such a shifting basis would be to rest them upon a foundation of quicksand. This argument has been anticipated, and to meet it counsel cite 2 Greenl. Ev. 249. We quote from the author a paragraph which counsel have italicized in their brief: “And after having been frequently proved in the course of successive legal investigations, * * * will take notice of it without further proof.” According to this, the courts are not to take cognizance of a usage until it has been “frequently proved.” When not proved at all, or when disproved, the holdings would, according to this, be different. But the learned commentator is here confining his observations to a particular class of special customs, i. e. “usages of trade.” It would have been nearer the mark, we think, from the standpoint of defendant’s counsel, to have cited the previous section,—248. There the author is treating of a still wider class of “special customs,” viz: “local customs,”—“established by common consent and uniform practice from time immemorial.” But in both sections of the treatise the learned commentator is confining his remarks to “special customs.” As has been shown, such customs and usages are very frequently proven in court as a means of interpreting contracts, and sometimes to annex terms
