Gerhardt v. Swaty

• Decision Date: 30 January 1882
• Citation: 14 N.W. 851,57 Wis. 24
• Parties: GERHARDT v. SWATY AND ANOTHER.
• Court: Wisconsin Supreme Court

57 Wis. 24

14 N.W. 851

GERHARDT

v.SWATY AND ANOTHER.

Supreme Court of Wisconsin.

Filed January 30, 1882.

Appeal from circuit court, Kewaunee county.

Timlin & Manseau, for respondent, Peter Gerhardt.

R. L. Wing and H. G. & W. J. Turner, for appellants, Frances Swaty and another.

TAYLOR, J.

This action was brought by the respondent to recover of the appellants the value of certain cedar trees and cedar ties wrongfully and unlawfully taken by them from the respondent's land. The complaint, after alleging ownership and possession by the respondent of a certain described parcel of land, alleges: “that on January 2, 1880, and at divers times thereafter, the said defendants unlawfully and wrongfully broke and entered the before-described close of this plaintiff, and cut timber thereon, and took and carried away from said land and converted to their own use unlawfully and and wrongfully, as aforesaid, 900 cedar trees, the property of this plaintiff, and about 1,000 cedar ties, the property of this plaintiff, to the damage of this plaintiff in the sum of $400. Wherefore the plaintiff demands judgment against the defendants for $400, and costs.”

The defendants answered by a general denial.

Upon the trial in the circuit court the plaintiff obtained a verdict for the value of certain ties and posts which he claims had been taken from his land by the defendants, and converted by them to their own use. The damages were assessed upon the basis of the value of the ties and posts at Ahnapee, the place to which they were taken from plaintiff's land, and where the defendants had the same in their possession before they were sent out of the state. From the judgment entered in the case the defendants appeal to this court, and assign as errors: First, the court erred in refusing to nonsuit the plaintiff; second, in permitting the jury to allow as damages the market value of the ties and posts at Ahnapee; third, in the reception and rejection of testimony; fourth, in submitting the fourth question of the special verdict to the jury; fifth, in the instruction given to the jury. The learned counsel for the appellant claim that the plaintiff should have been nonsuited for three reasons: (1) Because the evidence did not show that plaintiff was in the actual possession of the lands from which the ties and posts were taken, and showed no other title to such lands except such title as may be inferred from the possession thereof; (2) admitting that plaintiff's evidence tended to show that he was in possession of the lands described in the complaint, and from which it is alleged the ties and posts were cut and carried away, there is no evidence that such ties and posts were cut upon and carried away from the lands of the plaintiff; (3) because the evidence fails to show that W. Swaty, one of the defendants, was ever upon the lands of the plaintiff, or had any part in cutting and removing the ties and posts.

The land described in plaintiff's complaint is the E. 1/2 of the E. 1/2 of section 11, in the town of Lincoln, Kewaunee county. The evidence of the plaintiff's possession given on the trial is as follows. The son of the plaintiff testified: “I know the east four forties of section 11. My father lives on these premises. He moved there in December, 1879; has been in possession of the land ever since. When he went into possession the two north forties were mostly green cedar timber. We never took anything off these forties. There were no fences on any of the land, not even surrounding the place where my father's house was. When I said in my direct examination my father is in possession of them, I meant he has got papers in them,--bought and paid considerable money due on them,--and this has reference to the whole four forties. It is all one piece of land.” The statement that his father had papers on the land was elicited on the cross-examination of the witness, and the evidence was in no way objected to by the defendants, nor did they move to have it striken out as incompetent or immaterial. We think the evidence shows such a possession of the premises in question as will support an action of trespass against mere intruders, claiming no title in themselves, or in those under whom they claim.

If the plaintiff had in fact purchased the tract in question, and obtained a conveyance thereof, and entered into the actual possession of a part of the lands so purchased under claim of title of the whole, he would be deemed in the actual possession of the whole tract for the purpose of maintaining an action for a trespass thereon by one claiming no right or title thereto. His possession as a general rule extends to the whole tract conveyed by the deed under which actual possession is taken. The defendants called out the evidence that the plaintiff took possession of the premises under some kind of a paper title, which extended to the entire four forties; and the evidence is as conclusive on them as though the paper title had been given in evidence by the plaintiff. Had they objected to parol evidence of the plaintiff's title it is probable that he would have put it in evidence on his part. Whether this proof would be sufficient to show an adverse possession of the four forties under the provisions of subdivision 4 of section 4212, Rev. St. 1878, against the tried owner, need not be decided, as, we think, a more liberal rule should be and is adopted against a mere trespasser, claiming no title or right to the premises. The second objection, that the evidence does not show that the timber in controversy was cut upon the lands of the plaintiff, was a pure question of fact for the jury, and unless, as is claimed by the learned counsel for the appellant, there is no competent evidence tending to show what was the true west line of plaintiff's land, the verdict of the jury upon that question is final.

The evidence is undisputed that the north-east corner of plaintiff's land is the north-east corner of section 11 in the town of Lincoln; and it is also undisputed that the north-east corner of section 11, as located by the government surveyors, cannot be found, and that the same was probably never marked in fact by such surveyors on the ground; that such corner may be termed a lost or missing corner. The south-east and the south-west corners of plaintiff's land are known corners, and both sets of surveyors called as witnesses on the trial agree in the location of such corners. It is insisted that no surveys made for the purpose of establing the north-east corner of section 11 are admissible as evidence for that purpose, unless such survey be made in strict accordance with the statutes of the United States, and the rules and regulations made by the secretary of the interior in conformity thereto. And it is claimed by the learned counsel for the appellant that none of the evidence introduced on the part of the plaintiff tending to show the location of that corner was competent for that purpose, and consequently there is no evidence in the case showing the north-east or north-west corner of plaintiff's land; so that the west line of plaintiff's land is not shown, and consequently the proofs do not show that the timber cut, and for which a recovery was had, was cut upon his land.

There are two answers to this claim of the defendants: First, the defendants did not object on the trial to the evidence offered by the plaintiff tending to show the location of his west line, on the ground that the surveys made by his witness were not made in strict accordance with the rules and regulations of the secretary of the interior upon that subject. If the rules and regulations of the secretary of the interior are such as it is now contended by the counsel for the appellants they are, then it is evident that neither party tried the case in the court below upon the theory that the surveys, in order to be admissible as evidence, must be made in accordance with such rules. It is not claimed that the surveys offered in evidence on the trial by the defendants were made in strict accordance with such rules. We must hold, therefore, that if there be any law of this state which requires the surveyor to proceed in a prescribed way in locating a lost or missing corner, that the parties waived the objection to the evidence offered, that it did not comply with such rule of law. Second, we do not find that there is any such rule as contended for by the learned counsel for the defendants established by any law of this state. The only law on the subject is section 770, Rev. St. 1878, which reads as follows: “Whenever a surveyor is required to subdivide a section or smaller subdivision of land established by the United States survey, he shall proceed according to the statutes of the United States, and the rules and regulations of the secretary of the interior in conformity thereto.”

It is clear to me that this section has no reference to the establishment of lost or missing corners of sections, or other greater or lesser subdivisions of government lands. We have found no statute of the United States which prescribes how a lost or missing corner shall be established, and have been referred to none by the learned counsel for either party. But we do find statutes upon the subject of the subdivisions of sections and of smaller subdivisions, and we also find rules and regulations made by the secretary of the interior upon that subject. The law above quoted declares that the subdivision of sections shall be made in the manner prescribed by the statutes of the United States, and the rules and regulations made in conformity to such statutes. As there are no statutes of the United States on the subject of lost or missing corners, there can be no rules made in conformity thereto. It was claimed on the trial by both parties that the evidence offered by them respectively tended to locate the true west line of the plaintiff's land, and from our examination of the evidence as stated in...