Knapp v. Alexander & Edgar Lumber Co.

• Decision Date: 14 March 1911
• Citation: 130 N.W. 504,145 Wis. 528
• Court: Wisconsin Supreme Court
• Parties: KNAPP v. ALEXANDER & EDGAR LUMBER CO.

145 Wis. 528

130 N.W. 504

KNAPP

v.ALEXANDER & EDGAR LUMBER CO.

Supreme Court of Wisconsin.

March 14, 1911.

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

Action by Glenn Knapp against the Alexander & Edgar Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss the complaint.

This is an action brought to recover damages for a trespass committed on the homestead of the plaintiff. On February 20, 1902, pursuant to section 2289, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1380), plaintiff made application for a homestead entry on the land upon which the trespass was afterwards committed. The register of the land office attached a certificate to such application, reciting that the application was made for lands subject to entry under the homestead act, and that there was no prior adverse right to the same. At the time of making his application plaintiff also filed an affidavit showing that he was entitled to make a homestead entry under the laws of the United States. On February 21st the receiver of the land office acknowledged receipt of the sum of $18, being the amount of fee compensation to which the register and receiver were entitled on the entry. On February 26, 1902, plaintiff filed the non-saline affidavit required by law. The foregoing papers constituted the homestead entry of the plaintiff in the lands described in the application. The trespass was committed on and between March 20, 1902, and April 7th of the same year; the defendant cutting and removing from said lands 49,140 feet of pine saw logs. On July 1, 1902, the plaintiff established his residence on said land and continued to reside thereon for five years, and made his final proofs in August, 1907, when a final receiver's receipt was issued to him. This was followed by a patent which was issued in January, 1908. Plaintiff looked the land over once before making his entry, for the purpose of informing himself as to its value. On March 20th he went upon the land to see if any trespass had been committed thereon, and on April 5th went upon the land for the same purpose, and found the defendant cutting timber, and forbade its cutting any more. On July 13, 1903, the United States collected from the defendant the value of the logs cut and removed from the plaintiff's homestead; the amount collected being $320.14. After receiving his patent, the plaintiff commenced this action and recovered judgment for the value of the lumber cut from the logs removed from the plaintiff's homestead; the amount recovered being $714.87. Defendant appeals from such judgment.

Kerwin, J., dissenting.Kreutzer, Bird, Rosenberry & Okoneski, for appellant.

Grace & Hudnall, for respondent.

BARNES, J. (after stating the facts as above).

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. Mygatt v. Coe, 147 N. Y. 456, 42 N. E. 17;Rice v. Frayser (C. C.) 24 Fed. 460;Staton v. Mullis, 92 N. C. 623;Travers v. McElvain, 181 Ill. 382, 387, 55 N. E. 135;Webber v. Clarke, 74 Cal. 11, 15, 15 Pac. 431;Omaha & F. L. & T. Co. v. Parker, 33 Neb. 775, 51 N. W. 139, 29 Am. St. Rep. 506;Gildehaus v. Whiting, 39 Kan. 706, 713, 18 Pac. 916. 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.

That a cause of action for trespass for injury to the possessory right may be maintained by a person in the actual possession of land against another who holds no paramount right or title, or against a mere intruder, by proving such possession, unlawful entry, and damage, is well established by the decided cases in this court. Hungerford v. Redford, 29 Wis. 345, 348;McNarra v. Ry. Co., 41 Wis. 69, 74;Gerhardt v. Swaty, 57 Wis. 24, 28, 14 N. W. 851; Gunsolus v. Lormer, supra.

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, supra, the court, after saying that actual possession is sufficient, unless the defendant proves an adverse title of a higher character than a possessory one, continues: “If the plaintiff is not the real owner of the land, and the defendants shall be compelled to pay the judgment which he (the plaintiff) recovered against them in the circuit court, what rule of law will prevent such owner from bringing an action against them for the same logs and recovering therein? * * * The fact that a recovery by the holder of a merely colorable title is no bar to a recovery by the real owner demonstrates that none but the real owner can recover.” The action was one of replevin to recover logs wrongfully cut on unoccupied lands claimed by the plaintiff, and recovery was denied, because he was unable to prove perfect title to the lands.

McNarra v. Railway Co., supra, was an action to recover damages occasioned by a fire negligently set by the defendant. It was held that the title necessary to be proved in order to maintain the action was the same as in an action of trespass quare clausum fregit, or in replevin for timber cut and removed, and that “in either case, if the lands upon which the trespass was committed were vacant and unoccupied, the plaintiff must prove his title thereto, or he cannot recover.”

In Gunsolus v. Lormer, supra, it was said: “That constructive possession which, in the absence of any actual possession, will warrant the bringing of this action (trespass quare clausum) is that of owner of the premises alone.”

In Stephenson v. Wilson, 37 Wis. 482, 488, it was held that, if the plaintiff in an action of trespass quare clausum cannot show actual possession, but is obliged to rely on his legal title, he must show a valid title.

In Wadleigh v. Marathon County Bank, 58 Wis. 546, 17 N. W. 314, the action was brought to recover the value of sawlogs cut upon lands owned by the plaintiff and converted by the defendant to its use. Judgment was demanded for $1,000, being the value of the logs, and for the sum of $1,000 for the damage to the land caused by the cutting of the timber. It was held that the action was in the nature of a trespass and was also brought to recover damages for permanent injury to the freehold. The court said: “Were no damages claimed other than for the mere invasion of the plaintiff's possession, the lands being wild and vacant, it would be incumbent on him to prove his title thereto in order to show a constructive possession in himself. The cause of action being permanent injury to the land, to entitle the plaintiff to recover he must establish his title. The reason of this is, if the plaintiff is not the owner of the land, a recovery by him would be no bar to an action for such injury brought against the trespasser by the real owner.”

Paige v. Kolman, 93 Wis. 435, 436, 67 N. W. 700, 701, was an action for trespass for cutting timber. The court said: “The land upon which the trespass was committed was unoccupied timber land. Hence the plaintiff must prove valid title in order to recover.”

In some of the cases cited the defendants were mere naked trespassers, who acted without any color of right. In all of them the plaintiffs showed or attempted to show some color of title. It seems, therefore, to be quite well established by our decisions that constructive possession follows the title, and that the trespasser on unoccupied lands can be made to respond in damages but once, and then to the owner. The decisions elsewhere to the same effect are numerous. Shipman v. Baxter, 21 Ala. 456; Smith v. Yell, 8 Ark. (Eng.) 470; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19; Yahoola River Mining Co. v. Irby, 40 Ga. 479; Atlantic & G. R. Co. v. Fuller, 48 Ga. 423; Rockwell v. Jones, 21 Ill. 279;Gauche v. Mayer, 27 Ill. 134;Broker v. Scobey, 56 Ind. 588; Buck v. Aikin, 1 Wend. (N. Y.) 466, 19 Am. Dec. 535; Roe v. Wilbur, 57 Pa. 406; Snider v. Myers, 3 W. Va. 195; Church v. Meeker, 34 Conn. 421; Edwards v. Noyes, 65 N. Y. 125.

It is now pertinent to consider what interest the plaintiff had acquired in the lands at the time of the trespass. It has been held by this court and by the federal Supreme Court that an entryman secures no title to the land he desires to homestead until he has complied with the law and has earned his patent. Empey v. Plugert, 64 Wis. 603, 607, 608, 25 N. W. 560;Whitcomb v. Provost, 102 Wis. 278, 282, 283, 78 N. W. 432;Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231;Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127. If the homesteader, before he has earned and received a final receiver's receipt, cuts or removes any more timber from his homestead than is necessary in the process of clearing his farm and fitting it for cultivation, he himself becomes a trespasser and liable to be prosecuted, not only civilly, but criminally, for the trespass. Timber Cases (D. C.) 11 Fed. 81;United States v. Lane (C. C.) 19 Fed. 910;United States v. Freyberg (C. C.) 32 Fed. 195; Shiver v. United States, supra; Stone v. United States, supra. No vested right is conferred on the claimant that may not be taken away by Congress. Frisbie v. Whitney, 9 Wall. 187, 193, 19 L. Ed. 668;Yosemite Valley Case, 15 Wall. 77, 88, 21 L. Ed. 82; Shiver v. United States, supra. The homesteader on making his entry acquires an inchoate right to secure the title to the land filed on, on complying with the homestead law, in preference to all other applicants for such land whose claims are subsequent to his. The land thereby becomes segregated and set apart for his benefit,...