LaLly v. Rossman

• Court: Wisconsin Supreme Court
• Citation: LaLly v. Rossman, 82 Wis. 147, 51 N. W. 1132 (Wis. 1892)
• Decision Date: 12 April 1892
• Parties: LALLY ET AL. v. ROSSMAN ET AL.

82 Wis. 147

51 N.W. 1132

LALLY ET AL.

v.ROSSMAN ET AL.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by Martin Lally and Patrick Meehan against L. Rossman and A. Mackenzie. From a judgment allowing plaintiffs' claim in part, plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Trespass for cutting and removing a quantity of pine timber from plaintiffs' lands. The defendants, by their answer, claimed title to the lands from which the timber was cut. The land from which the timber was cut was in section 30, township 42 N., of range 3 E., in Ashland county. This section is intersected by the Flambeau river, and was surveyed and sold in lots, instead of regular subdivisions. The controversy here arises principally from the fact that the actual location of the river and its location as meandered and as indicated upon the government plat differ very widely. The following map shows this difference:

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This map is a substantially correct copy of the government plat, so far as the land in controversy is concerned, except that the stream marked “River as actually located” does not appear upon the government map. Plaintiffs proved title from the United States to lot 5 in said section, according to the official plat and survey. Defendants proved title in like manner to lot 7. Upon the trial the jury found, in reply to special questions, that the defendants cut and removed 185,000 feet of timber from what would be (if the section were regularly subdivided) the northwest quarter of the southeast quarter of said section, north of the river as actually located; that defendants cut 2,800 feet of timber on lot 5, north of the meandered line as indicated on the plat; and that the value of the logs per thousand was $6.25. Upon this verdict the circuit judge held that the plaintiffs were entitled to recover only for the value of the 2,800 feet of timber cut from that part of lot 5 north of the meandered line, for which sum, with costs, judgment was entered. Plaintiffs appealed from the judgment, claiming that they were entitled to judgment for the value of the entire 185,000 feet.Lamoreux & Park, ( Lamoreux, Gleason, Shea & Wright, of counsel,) for appellants.

Rossman & Foster, for respondents.

WINSLOW, J., ( after stating the facts.).

It is plain that there is but one question of importance in the case, and that is the question as to the southern boundary of lot 5. If that boundary be the old meandered line of the river, the judgment below was right. If, on the other hand, that boundary be the eighth line between the northwest quarter of the southeast quarter and the southwest quarter of the southeast quarter, then the plaintiff should have recovered the value of the 185,000 feet of lumber...