Befay v. Wheeler

• Decision Date: 10 January 1893
• Citation: 53 N.W. 1121,84 Wis. 135
• Parties: BEFAY ET AL. v. WHEELER.
• Court: Wisconsin Supreme Court

84 Wis. 135

53 N.W. 1121

BEFAY ET AL.

v.WHEELER.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Winnebago county; GEORGE W. BURNELL, Judge.

Action by Dennis Befay and another against Miles H. Wheeler to recover the highest market value of timber cut by defendant. From a judgment for plaintiff for $1.50 per 1,000, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

The action was brought to recover the highest market value of pine timber cut by defendant on two 40-acre tracts of land in Florence county. The complaint alleged that said lands belonged to the state of Wisconsin on and prior to October 2, 1887, and were on that day purchased by the plaintiffs, who received a patent therefor from the state, and ever since have been the owners thereof; that at various times in the years 1884, 1885, 1886, and 1887 the defendant entered on said lands, and cut and removed 655,839 feet of pine timber, unlawfully, and without the consent of the commissioners of public lands of the state. Judgment was demanded for the highest market value of said timber, alleged to be $12 per 1,000 feet. The answer, after denying knowledge or information as to the plaintiffs' title, alleged that in June, 1881, the defendant entered said lands at the United States land office at Menasha, and received the proper certificate of entry therefor, and that thereafter, and prior to April 1, 1886, he cut and removed timber therefrom to the amount of 450,000 feet, and no more, not exceeding in value $2 per 1,000, and that he cut the same in good faith, believing himself to be the owner thereof under his certificate of entry. It appeared upon the trial that the defendant entered the lands, with others, at the United States land office at Menasha, in June, 1881, paid the purchase price, and received the proper receipt from the receiver therefor; the lands then appearing upon the books and plat of the land office to be subject to entry and sale. It further appeared that in April, 1886, the state of Wisconsin selected these lands, with others, as swamp lands inuring to the state under the act of congress approved September 28, 1850, which selection was approved by the secretary of the interior April 10, 1886, and that in January, 1887, the United States patented said lands so selected, including the lands in suit, to the state. The state conveyed the lands in question to plaintiffs by patent in November, 1887. In June, 1882, the commissioner of the general land office notified the register and receiver at Menasha that the entries of the two 40's in question, made by Wheeler, were held for cancellation, as conflicting with the swamp-land grant to the state, and directed the register to notify Wheeler of the fact. In June and July, 1885, the commissioner then acting canceled said entries, and notified the register at Menasha of the fact, and directed him to advise the party in interest. No direct proof was given of any notification to Wheeler of either of these decisions, and Wheeler testified positively that he never received any notice of either of the decisions, or that there was any trouble of any kind with his entry, until August, 1887, when he immediately made application for the refund of his purchase money, and received the same. The defendant substantially abandoned on the trial any claim that he was the rightful owner of the lands in question, and claimed that he cut the timber in good faith, believing that he had a good title. There was little dispute as to the amount of timber cut, but there was considerable dispute as to the value of the stumpage and of the logs. The cutting was done during three seasons, to wit, the season of 1884-85, the season of 1885-86 and the season of 1886-87. The jury found, by special verdict, that the defendant cut and removed 397,528 feet of timber from one 40, the stumpage value whereof was $1 per 1,000, and the highest market value $6.50 per 1,000; that he cut and removed from the other 40 216,728 feet, at a stumpage value of $1.50 per 1,000, the highest market value being $7.50 per 1,000; that defendant acquired his title and cut the timber in good faith, believing that he had a good title. The plaintiffs moved for a new trial, for errors in admission and exclusion of evidence, and in giving and refusing instructions, which being overruled they moved again, upon affidavits claiming to show newly-discovered evidence. This motion was also overruled, and judgment was entered for $962.93 in favor of plaintiffs; being the stumpage value of the timber cut, with interest. From this judgment, plaintiffs appealed.Wigman & Martin, for appellants.

Silas Bullard, ( Gabe Bouck, of counsel,) for respondent.

WINSLOW, J., ( after stating the facts.)

Really the only issue litigated was as to the amount of damages to which plaintiffs were entitled. The defendant on the trial did not claim that he ever possessed a valid title to the lands in question, but he claimed that he cut the timber therefrom under a title acquired in good faith, which he believed to be good. If this was the case, the value of the stumpage is all that could be recovered by the plaintiffs. If it was not the case, the highest market value of the timber at any time while in the defendant's possession might be recovered as damages. Rev. St. § 4269, as amended by chapter 239, Laws 1882. It is manifest that the word “title,” as used in chapter 239, just cited, does not mean a valid title in fee, for, if the defendant had that, then there could be no recovery against him; but it must mean a title apparently good, but which in fact, for some reason, is invalid. The register's receipt, which the defendant held, showing his purchase of the lands in question, was a title which apparently vested in him the entire equitable and beneficial interest in the land. Farnham v. Sherry, 71 Wis. 568, 37 N. W. Rep. 577. This title was apparently a good title, but not in fact a good title, because the lands in question were afterwards selected by the proper authorities as swamp lands, and thus it was conclusively determined that the title thereto passed from the United States to the state upon the passage of the swamp-land grant act of September 28, 1850; it being settled that the provisions of that act...