Leihy v. Ashland Lumber Company

• Decision Date: 20 April 1880
• Citation: 5 N.W. 471,49 Wis. 165
• Parties: LEIHY v. THE ASHLAND LUMBER COMPANY
• Court: Wisconsin Supreme Court

5 N.W. 471

49 Wis. 165

LEIHY v. THE ASHLAND LUMBER COMPANY

Supreme Court of Wisconsin

April 20, 1880

Argued March 31, 1880

APPEAL from the Circuit Court for Ashland County.

The questions in this case arose upon demurrer to the complaint. The substance of the complaint is thus stated by Mr. Justice TAYLOR:

"The complaint alleges, in substance, that on the first of May 1877, and from thence to the commencement of this action, the plaintiff was the owner of forty acres of land described as the N.W. 1/4 of N. E. 1/4 of section 36, town 47, range 3 east, situated in Ashland county, and of a dam situated on said land across a stream known as Bad river; that he built said dam in 1850, and had ever since used the same without interruption or objection by any one, until on or about the first of May, 1877, when, without the authority or consent of the plaintiff, it was cut and partially torn away by the defendant's servants and agents, and rendered entirely useless, to the plaintiff's damage of $ 1,000. It is also alleged, as a second cause of action, that on the first of May, 1877, the defendant, by its servants, agents and employees, entered upon said N.W. 1/4 of N. E. 1/4 of section 36, town 47 north, range 3 east, the property of the said plaintiff, and cut and felled and removed from said land two hundred pine trees, and deprived said plaintiff of said pine trees, his property; that said pine trees, so cut, carried away and used by said defendant, were of the value of $ 300 whereby an action has accrued to the plaintiff against the defendant, and he is entitled to judgment against the defendant for said sum of $ 300. The complaint then demands judgment for the sum of $ 1,000 on the first cause of action and $ 300 on the second cause of action."

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action; and plaintiff appealed from an order sustaining the demurrer.

Order reversed and cause remanded.

The cause was submitted for the appellant on the brief of J. H Knight. He contended, among other things, that in trespass quare clausum it is sufficient to describe the premises in general terms as the property of the plaintiff, without otherwise alleging title, possession, or right of possession. Bliss on Code Pl., § 229; Daley v. St. Paul, 7 Minn., 390; Cowenhoven v. City of Brooklyn, 38 Barb., 9; 2 Wait's Pr., 288-9; 2 Waterman on Trespass, §§ 989, 995.

For the respondent there was a brief by W. M. Tompkins, and oral argument by J. O. Raymond. They contended, among other things, that the complaint was defective, 1. In not showing that the plaintiff was owner of the land or the dam at the time of the alleged trespass. 2. In not sufficiently alleging title or possession. 2 Waterman on Trespass, §§ 987 and 995. The mere allegation that he is the owner of the land is not a sufficient averment of title upon which to found a presumption of possession. Wals v. Grosvenor, 31 Wis., 681. 3. In not alleging that the stream on which the dam was constructed was not navigable. If the dam obstructed the use of the navigable river, defendant had a right to remove it and to enter upon the land for that purpose. Angell on W. C., 563. It must appear from the complaint that there was a forcible and unlawful entry.

OPINION

DAVID TAYLOR, J.

The first objection made to the complaint by the learned counsel for the respondent, is that it does not allege that the plaintiff owned the land or dam at the time of the alleged trespass. The point of this objection is, that as the complaint alleges that plaintiff was the owner on the first of May, 1877, and from that time forward, and then alleges that the trespass was committed on or about the first of May 1877, the trespass might have been committed before the plaintiff became the owner. We think this objection is quite too technical and refined. The allegation is substantially that, on the first of May, 1877, the plaintiff owned the land and dam, and that on that day the defendant, without his authority or consent, destroyed the dam, to his damage of $ 1,000. We think it is sufficiently alleged that...