Paige v. Kolman

• Decision Date: 22 May 1896
• Citation: 93 Wis. 435,67 N.W. 700
• Parties: PAIGE v. KOLMAN.
• Court: Wisconsin Supreme Court

93 Wis. 435

67 N.W. 700

PAIGE

v.KOLMAN.

Supreme Court of Wisconsin.

May 22, 1896.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by Charles Otis Paige against Louis Kolman. Judgment for plaintiff, and defendant appeals. Reversed.

Trespass. The plaintiff sued for the cutting of logs and timber upon the N. W. 1/4 of section 15, township 47 N., of range 4 W., in Ashland county, Wis., and claimed the highest market value of the manufactured product, under Rev. St. § 4269. The defendant first served and filed an affidavit of cutting the logs by mistake, and offered to allow judgment to be taken against him for the stumpage value of the same, alleged to be $62.10, and costs. The defendant also served an answer, admitting plaintiff's title, and alleging that the logs were cut by mistake. Afterwards, by leave of court, the defendant served and filed a supplementary answer, alleging that the plaintiff was the owner of the land described in the complaint, but was not the owner of the timber thereon; but that all of said timber, and the right to cut and remove the same, was excepted from the deeds through which the plaintiff derived his title. A special verdict was returned by which it was found (1) that plaintiff was the owner of the timber and logs cut and removed by the defendant; (2) that said timber cut consisted of 65,000 feet of pine saw logs, 30 cords of cord wood, and 3 cords of pulp wood; (3) that the trespass was by mistake; and (4) that the value of the timber cut, while standing, was $179. From judgment for this amount and costs, the defendant appealed.A. E. Dixon, for appellant.

Sanborn, Dufur & O'Keefe, for respondent.

WINSLOW, J. (after stating the facts).

The land upon which the trespass was committed was unoccupied timber land. Hence the plaintiff must prove valid title in order to recover. Hungerford v. Redford, 29 Wis. 345. In order to prove title, the plaintiff introduced a patent from the United States of the land in question, dated November 15, 1894. The land in question was a part of an odd-numbered section within the limits of the grant made by section 3 of the act of congress of May 5, 1864 (13 Stat. 66, c. 80), by which every alternate section of public land, designated by odd numbers, for 10 sections in width, on each side of a certain projected railroad, was granted to the state of Wisconsin. The benefits of this grant were afterwards conferred by the state on the Wisconsin Central Railroad Company by various acts. P. & L. Laws 1866, cc. 314, 362; Id. 1869, c. 257; Id. 1871, c. 27. It...