Burdick v. Chi., M. & St. P. Ry. Co.

• Citation: 87 Iowa 384,54 N.W. 439
• Court: United States State Supreme Court of Iowa
• Decision Date: 28 January 1893
• Parties: BURDICK v. CHICAGO, M. & ST. P. RY. CO.

87 Iowa 384

54 N.W. 439

BURDICK

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Jan. 28, 1893.

Appeal from district court, Howard county; W. A. Hoyt, Judge.

Action to recover damages to growing timber by reason of a fire alleged to have been set out by one of defendant's locomotive engines while drawing a train of cars on defendant's railroad. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.Noble & Updegraff and H. T. Reed, for appellant.

Barker & Upton, for appellee.

ROTHROCK, J.

It is conceded that on the 20th day of April, 1889, the growing timber on certain land, claimed to be owned by the plaintiff, was materially injured by fire. It is claimed by the plaintiff that the fire which caused the damage was set out by sparks from one of the defendant's engines in passing the timber land while drawing a train of cars along the railroad. The answer contained a general denial of each and every allegation in the petition. The first question made by the defendant is that under the pleadings it was necessary for the plaintiff to prove that he had title to the land upon which the timber was situated, and that there was an entire failure of evidence showing title in the plaintiff to a part of said land. The plaintiff undertook to show a chain of title from the United States to himself. It appears from the evidence that at one time one Kenut Bergh, or Knuet Bergh, or Knudt E. Bergh owned an undivided interest in a part of the land. Although the Christian name was sometimes written as Knuet, and again as Knudt, and again as Kenut, yet it plainly appears that all these variations in name represented the same person. It is claimed by the plaintiff that said Bergh died, and that his interest in the land was inherited by his father, E. Bergh; and plaintiff introduced in evidence certain proceedings in partition instituted by said E. Bergh, in which part of the land was partitioned and set off to E. Bergh as the sole heir of said K. E. Bergh. This was followed by evidence that it is claimed by plaintiff shows that E. Bergh was the father of and sole heir of K. E. Bergh. Strenuous objection was made to this evidence, on the ground that it was incompetent, being mere hearsay, and not founded upon general reputation. In the view we take of the case, the evidence of the death of the son and the heirship of the father was wholly unnecessary. The action in partition was adversary in its character between the then owners of the land, and the controversy involved the question of the death of the son and the inheritance of the father; and it is to be presumed that it was found in that action that the averments of the plaintiff's petition were true. The proceedings in partition, so far as concerns the question now under consideration, operated the same as a conveyance of the land from the son to his father. Hoffman v. Stigers, 28 Iowa, 302. It is to be remembered that this is not a contest between parties, both of whom claim title to the land, where the proceedings in partition are attacked for fraud or other alleged invalidity. The case of Costello v. Burke, 63 Iowa, 361, 19 N. W. Rep. 247, is not in conflict with the views above expressed. That was a case where it was sought to prove that the former owner of the land was dead by recitals in a deed, made by persons claiming to be his heirs, that the former owner was dead, and that the persons making the deed were his heirs. This was no more than the mere declaration of the grantors in the deed. In the case at bar all the parties claiming interest in the land were before the court, and the question was adjudicated between the...