Haseltine v. Mosher

• Decision Date: 02 March 1881
• Citation: 51 Wis. 443,8 N.W. 273
• Parties: HASELTINE AND ANOTHER v. MOSHER AND ANOTHER.
• Court: Wisconsin Supreme Court

51 Wis. 443

8 N.W. 273

HASELTINE AND ANOTHER

v.MOSHER AND ANOTHER.

Supreme Court of Wisconsin.

Dated March 2, 1881.

Appeal from circuit court, Wood county.

This action was commenced May 20, 1876, to recover the value of pine timber alleged to have been wrongfully cut and removed by the defendants, and disposed of and converted to their own use, from 80 acres of land, being the east half of a quarter section, in the years 1871 and 1872, alleged to be the property of the plaintiffs. The defendant Mosher, by separate answer, in addition to denials, alleged in effect that during the time mentioned the title and actual possession of the south 40 of the 80 was in himself; and the defendant Gamble, by separate answer, in addition to denials, alleged in effect that he and Mosher were, during the time mentioned, partners in the lumber business, under the firm name of Mosher & Gamble; that just prior to entering into said partnership Gamble purchased of Mosher an undivided one-half interest in and to the pine timber standing upon said south 40 acres of land, for the purposes of said partnership; and that whatever pine timber said Mosher & Gamble had cut or taken from said lands mentioned in the complaint, was cut and taken from said south 40, and also set up the statute of limitations. To the several questions in writing, submitted to the jury, they answered, in effect, that the plaintiffs were the original owners of the north 40, and that the defendants cut and removed therefrom 17,000 feet of lumber, board measurement, and that the same was worth five dollars per 1,000 at the saw-mill on the Eau Claire river.

Also that the plaintiffs claimed title to the south 40 by a tax deed dated May 10, 1869, and recorded June 27, 1869, to Marathon county, and by quitclaim deed from Marathon county to the plaintiffs, dated October 1, 1869; that the defendants claimed title to the south 40 as grantees of the original owner by warranty deed, dated October 18, 1870, and, as such owners, entered upon said south 40 November 1, 1871, and began cutting roads, building sledways, and cutting and hauling the pine off the land, and continued carrying on such work on said land until April 1, 1872, and then renewed the same in the winter of 1872-73, and finally quit in March, 1873. That said defendants went thereon for the only purpose of removing the timber therefrom as owners in their business of lumbering; and that the same was done openly and continuously during the logging seasons mentioned, in the usual way lumbermen carry on their logging business; but that they did not erect any shanty or other structure thereon for temporary occupancy after said tax deed was recorded, and they left the occupancy of the land when they had cut and removed the pine timber therefrom; and that, for the three years following the recording of said tax deed, the said south 40 was wild and unimproved land, with the soil fit for agricultural purposes, and that the defendants during the time alleged cut 700,000 feet of pine lumber, board measure, from said 80 acres, but that all of it was on the south 40, except 17,000 feet, which was cut on the north 40, as stated, and which the jury found to be of the value, with interest to the time of trial, of $121.69.

The plaintiffs' counsel therefore moved for judgment on the whole verdict for the value of all the lumber taken from said 80, which was overruled by the court, and the counsel for the plaintiffs excepted. Thereupon the counsel for the plaintiffs moved to set aside the verdict, and for a new trial, on the ground of misdirection of the court to the jury on the subject of damages, and by refusing instructions thereon requested by the plaintiffs, which was overruled by the court, and the counsel for the plaintiffs excepted. There was evidence tending to show that said lumber was sold by the defendants at St. Louis, Missouri, where it was worth, when so sold, from $15 to $18 per 1,000 feet, board measure.

It appears from the record that the defendants' attorneys were not present at the hearing of the motion for a new trial, and that a few days thereafter, on notice to the plaintiffs' attorneys, they offered and consented that said verdict might be set aside, and for a new trial, without costs, upon the grounds mentioned in the motion, so far as the same related to that part of the judge's charge, and refused to charge upon the measure of damages for the timber cut from the north 40. The court charged the jury, among other things, in effect, that if the defendants cut any timber upon the north 40 they were liable for the amount and value thereof at its highest market price, as saw logs, at the saw-mill upon the Eau Claire river, with interest thereon from the time of the cutting to the verdict, and refused to instruct that they might give the plaintiffs, by way of damages, the highest market price of such lumber, while it so remained in the hands of the defendants, between the time of such cutting and the time of trial. There are 114 printed pages in the case, of which 84 pages consist of testimony relating largely to the location of the line between the two 40's.

James & Crosby, for appellants.

Silverthorn & Hurley, for respondents.

CASSODAY, J.

Section 32, c. 22, Laws 1859, now modified and embodied in section 1187, Rev. St., provided, among...