Dunbar v. Montreal River Lumber Co.

• Citation: 127 Wis. 130,106 N.W. 389
• Parties: DUNBAR v. MONTREAL RIVER LUMBER CO.
• Decision Date: 30 January 1906
• Court: United States State Supreme Court of Wisconsin

127 Wis. 130

106 N.W. 389

DUNBAR

v.MONTREAL RIVER LUMBER CO.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Iron County; John K. Parish, Judge.

Action by Charles F. Dunbar against the Montreal River Lumber Company. From a judgment for plaintiff, defendant appeals. Modified.Lamoreux & Shea, for appellant.

Sanborn, Lamoreux & Pray, for respondent.

WINSLOW, J.

This is an action to recover damages for the cutting of timber upon eight 40-acre tracts of land, the complaint containing one count for trespass and one count for conversion, both counts covering the same lands and timber. At the time the acts of trespass and conversion were committed the title to the lands and timber were in the plaintiff's grantor, the Hoffman Land Company. As to one of the 40-acre tracts the jury found that the trespass thereon was committed by the defendant, as to two of the tracts there was no proof, and as to the remaining five tracts the jury found that the trespass was committed by one Stabler and that the logs were afterwards sold to, and converted by, the defendant, and judgment was rendered for the value of the logs which the defendant cut, as well as the logs which it converted.

Prior to the commencement of the action, the Hoffman Land Company sold and conveyed all the lands in question to the plaintiff by warranty deed, such deed containing the following clause: “The grantor hereby assigns and transfers to the grantee all its claims, demands or causes of action for or on account of any trespass upon the real estate above described.” The only question upon the merits raised upon the appeal is as to the correctness of that part of the judgment which awards the plaintiff a recovery for the logs converted by the defendant. The argument is that the assignment above quoted does not cover a cause of action for conversion, but only causes of action for trespass. Had the assignment not contained the words “on account of” the appellant's argument would be strong that only causes of action for trespass were assigned, but the language is “causes of action for or on account of any trespass.” This is a question of construction only, and the language used must be construed reasonably to give every word effect, if possible. Giving it the construction contended for by the appellant, the words “on account of” are absolutely superfluous and without meaning, because all claims for trespass are effectually assigned without them. “On account of” doubtless means “by reason of.” Brown v. Title & Trust Co., 174 Pa. 443, page 461, 34 Atl. 335, 343. A cause of action in trover for the conversion of logs previously cut by a trespasser certainly seems to be a cause of action resulting “by reason of” the initial trespass; the conversion is a natural and legitimate result of the trespass. It is difficult to see to what other claims or causes of action the words can refer, except claims or causes of action for conversion; and, as we have seen, the words should be given some meaning if there be a reasonable meaning consistent with the evident intent of the parties which can be given to them. There is little in the way of authority which throws light upon the question, but we are satisfied that the trial court was right in construing the assignment as covering causes of action for conversion.

The remaining question in the case arises upon the taxation of costs. Our statute provides in substance (Rev. St. 1898, § 2922) than when in such actions as the present the amount recovered exceeds $50 the plaintiff shall recover full costs, including therein “any actual reasonable expense of one survey and ascertainment of the quantity of timber so cut, or cut and converted * * * made after the commencement of the action by one surveyor and one assistant if duly proved as a necessary disbursement.” Under this section the plaintiff presented for taxation among the disbursements of the cost bill an item of $638.15, made up of the following items.

+-----------------------------------------------------------------------------+
                ¦1903. Nov. 26 days' surveying and scaling trespass in town 44, 2 E.   ¦$130  ¦
                ¦                                                                      ¦00    ¦
                +----------------------------------------------------------------------+------¦
                ¦Paid assistant for 23 days at $5 per day                              ¦115 00¦
                +----------------------------------------------------------------------+------¦
                ¦Paid cook for 24 days at $2.50 per day                                ¦60 00 ¦

...