Klitzke v. Ebert

• Decision Date: 15 February 1944
• Citation: 12 N.W.2d 144,244 Wis. 225
• Parties: KLITZKE et al. v. EBERT.
• Court: Wisconsin Supreme Court

244 Wis. 225

12 N.W.2d 144

KLITZKE et al.

v.EBERT.

Supreme Court of Wisconsin.

Dec. 7, 1943.

Rehearing Denied Feb. 15, 1944.

Appeal from a judgment of the Circuit Court for Shawano County; Arold F. Murphy, Circuit Judge.

Reversed.

Action brought by Max and Paul Klitzke against Joseph Ebert and another defendant, to recover damages for trespass committed by Ebert in unlawfully cutting and removing timber from a tract of land claimed by plaintiffs to be part of the 80 acres to which plaintiffs claimed to have title. Ebert owned the adjoining 80 acres in an adjoining section, and claimed that the land from which he removed the timber was part of his 80 acres.

The principal issues under the pleadings and the evidence on the trial were (1) whether plaintiffs had title to the 80 acres which they claimed to own in the S 1/2 of the SW 1/4 of a section numbered 8; (2) whether the tract from which Ebert removed the timber was part of plaintiffs' claimed 80 acres in section 8 or whether it was part of Ebert's adjoining 80 acres in section 7, all of which depended, in turn, upon whether the original government section corner between those sections on their south line was located as claimed by plaintiffs, or whether its location was as claimed by Ebert; (3) whether the cutting of the timber on the disputed strip of land was done by mistake on the part of Ebert; and (4) what was the highest market value of the logs cut. No question was submitted to the jury by the court in respect to the issue as to whether plaintiffs had title to the 80 acres which they claimed to own. In answer to questions submitted as to the other issues, the jury returned answers favorable to plaintiffs; and upon motions after verdict the court entered judgment against the defendant Ebert for plaintiffs' recovery of the damages assessed. Ebert appealed.

Eberlein & Eberlein, of Shawano, for appellant.

Stanley A. Staidl, of Appleton, and Orville S. Luckenbach, of Shawano, for respondents.

FRITZ, Justice.

Upon this appeal Ebert contends that during the trial there were errors in several respects which were prejudicial to him. His first contention is that although he expressly denied by allegations in his answer the allegations in plaintiffs' complaint that they owned the 80 cares, on part of which they claimed Ebert committed the alleged trespass, plaintiffs failed to prove on the trial that they had title to that land; and that as it appears from undisputed proof that the land was unimproved, uncultivated and wild, and there was no proof that plaintiffs were in actual possession thereof, they cannot recover in this action. The contention must be sustained.

The only instruments offered in evidence by plaintiffs in relation to title are a recorded sheriff's deed to plaintiffs dated December 1, 1927, which describes the land in question and purports to have been given pursuant to a foreclosure sale under a judgment foreclosing a mortgage thereon; and a circuit court order dated December 17, 1927, confirming the sheriff's sale on foreclosure to plaintiffs. There is, however, no statement or recital in either the deed or the order of any facts which can be considered to show that the mortgagor had any title to the land. In addition there is a warranty deed executed by plaintiffs to convey the land to the United States government, but this deed was admitted in evidence only for the purpose of plaintiffs proving the reservation of the right to recover damages for trespass committed prior to that conveyance. Defendants duly objected to the admission in evidence of the sheriff's deed and the order confirming the foreclosure sale, and the court sustained those objections, but finally the instruments were admitted as only part of the chain of title. Likewise the court sustained repeatedly defendants' objections to questions which plaintiffs' counsel, in examining his client, worded so as to imply ownership in plaintiffs. Finally there were the following proceedings and ruling when the client was again asked by plaintiffs' counsel, ‘And you owned that land ever since until you sold it’, ‘Mr. Eberlein (Ebert's counsel): Object to the term ownership, if it is an attempt to prove his title by the use of that word in this question. Court: Objection overruled. They can testify they own it, but it requires further proof. Go ahead.’ In addition the following rulings disclose that the court fairly offered to give plaintiffs sufficient time to produce proper proof to establish title, to-wit:

‘There is only one way to prove title when an objection is made. I know it is going to take a lot of time; we may have to adjourn tomorrow and come back and spend that time, if that is what the objection means and they insist upon it.’

‘Well, the objection has to be sustained and I assume you are going to have to bring in some abstractor * * * and prove the process right through, if they insist upon it. We can wait. I will give you time, of course, to do that, if you are not ready. * * *’

Plaintiffs failed to take advantage of the proffered opportunity to introduce proof of title. Their only additional testimony is that they paid taxes during the years in question.

As the issue as to whether plaintiffs had the land was duly raised by Ebert's denial thereof in his answer, and as the land was wild and uncultivated and there was no proof established that plaintiffs were in actual possession, they cannot recover in this action unless they establish that they had good title to the land. As the court said in Knapp v. Alexander-Edgar Lumber Co., 145 Wis. 528, 530, 130 N.W. 504, 505,140 Am.St.Rep. 1091, ‘That the plaintiff at the time of the cutting was not in the actual possession of the land from which the timber sued for was cut is too plain to admit of controversy. * * * The action of trespass quare clausum can be maintained only by one in the actual or constructive possession of the premises on which the trespass is committed. Gunsolus v. Lormer, 54 Wis. 630, 634, 12 N.W. 62. * * * It is also well settled that a plaintiff in an action quare clausum, who is not in the actual possession of the land upon which the trespass is committed, and who is therefore obliged to rely on constructive possession, must establish that possession by showing that he has good title. Stated in another way, the constructive possession follows the title. In Hungerford v. Redford (29 Wis. 345) supra, the court, after saying that actual possession is sufficient, unless the defendant proves an adverse title of a higher character than a...