Arpin v. Burch

Citation32 N.W. 681,68 Wis. 619
PartiesARPIN v. BURCH.
Decision Date12 April 1887
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, Juneau county.

G. W. Cate and L. P. Powers, for plaintiff.

G. C. Prentiss and F. Winsor, for defendant.

ORTON, J.

In this case there are cross-appeals, both parties being dissatisfied with the judgment. The facts are substantially and briefly as follows: In 1868 the plaintiff, who is the above appellant, had afloat in Yellow river a large number of pine logs, intended to be manufactured into lumber near the mouth of said river, and the defendant diverted a large portion of them into the boom belonging to the firm of which he was a member, near the town of Necedah, and converted the same to his own use, or to the use of said firm; and it is alleged in the complaint, as another and separate cause of action against the defendant, that in 1869 the defendant obtained possession and converted, in a similar way, 99 other logs of the plaintiff. A part of the logs so diverted and converted in 1868 was cut, by a mistake of lines and boundaries, by the plaintiff, upon the lands of the defendant, or of his firm. No question is made in respect to the individual ownership or conversion of said logs by the defendant, Burch, or to his individual liability. It was a disputed question of fact as to the number of the logs, so diverted in 1868, that were cut on the lands of the defendant, and as to the number which belonged to the plaintiff, and as to the whole number so diverted, upon which there was considerable conflict of evidence. On the question as to whether the defendant diverted any of the 99 logs of the plaintiff in 1869 there was also a conflict of evidence. The referee who tried the case, and the circuit court in acting upon his report, agree that, of the logs so diverted in 1868, 81,250 feet were cut on the land of the defendant, and belonged to him, and that the remainder so diverted in that year by the defendant, amounting to 52,539 feet, belonged to the plaintiff, and that the value of said logs, at Necedah, was $4.75 per thousand feet. Both parties are dissatisfied as to these respective amounts of the logs.

We have carefully examined the evidence, and do not think that there is any clear preponderance of the evidence against these findings. It would be profitless to more specially notice the evidence, or to discuss its bearing and effect. The presumption of the correctness of these findings, from the fact that the referee is an able and a careful lawyer, and heard the testimony, and that they were confirmed by so able a court, is in itself very strong. The referee found that the defendant so diverted and converted the said 99 logs in 1869. This finding was reversed by the circuit court. We do not think that the evidence that the defendant took possession of said logs, or that they were not a part of the logs taken the year before, if he did take them, was so strong and conclusive as to justify this court in reversing the ruling of the circuit court on these questions. It is impossible to reconcile the evidence as to these 99 logs, and the plaintiff was bound to make a reasonably clear case as to them, and it is evident that he has not done so.

The other questions raised in the case for the decision of this court are:

First. On the part of the plaintiff as appellant, whether he should not have recovered, as part of his damages, the difference between $4.75 per thousand feet for the 81,250 feet of logs at Necedah, and $1.25 per thousand feet for the stumpage of the same when cut, and interest thereon, which values were so found, on the ground that they were so cut by mistake, and such amount only is allowed the defendant by the statute, and that he obtained the value of the plaintiff's labor in cutting, hauling, and driving the same, which he was not entitled to have. There are two facts which seem to be very clear: (1) That this cutting on the defendant's land was done by mistake;...

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14 cases
  • State ex rel. Robertson v. Hope
    • United States
    • Missouri Supreme Court
    • March 13, 1894
    ...plaintiff in actions for the conversion of chattels, interest on their value should be allowed from the time they are taken. Arpin v. Burch, 68 Wis. 619, 32 N.W. 681; Hamer v. Hathaway, 33 Cal. McCormick v. Railroad, 49 N.Y. 303; Buford v. Fannen, 1 Bay 273; 1 Sutherland on Damages [2 Ed.],......
  • Shaw v. Gilbert
    • United States
    • Wisconsin Supreme Court
    • May 21, 1901
    ...to that effect, and filing a written decision containing the statement: “Interest will be allowed under the doctrine of Arpin v. Burch, 68 Wis. 619, 32 N. W. 681. * * * Plaintiff's attorneys may prepare judgment in accordance with the above memorandum, and overruling the defendant's motion ......
  • State v. Hope
    • United States
    • Missouri Supreme Court
    • March 13, 1894
    ...in action for the conversion of chattels, interest on their value should be allowed from the time they were taken. Arpin v. Burch, 68 Wis. 619, 32 N. W. 681; Hamer v. Hathaway, 33 Cal. 117; McCormick v. Railroad Co., 49 N. Y. 303; Buford v. Fannen, 1 Bay, 273; 1 Suth. Dam. (2d Ed.) § 105. I......
  • Fail–safe Llc v. A.O. Smith Corp..
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • January 14, 2011
    ...in a limited amount is allowed. Id. § 42(1). The restatement's view has been widely supported in Wisconsin case law. See Arpin v. Burch, 68 Wis. 619, 32 N.W. 681 (1887); see also Schultz v. Carroll, No. 85–0948, 131 Wis.2d 590, 1986 Wisc.App. LEXIS 3429, at *3 (Ct.App.1986). In sum, the sit......
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