Pogel v. Meilke

• Decision Date: 08 April 1884
• Parties: POGEL v. MEILKE.
• Court: Wisconsin Supreme Court

60 Wis. 248

18 N.W. 927

POGEL

v.MEILKE.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from circuit court, Jefferson county.

Charles H. Gardner, for respondent, John Pogel.

Smith & Rogers, for appellant, Carl Meilke.

COLE, C. J.

The defendant made no attempt to prove a prescriptive right to catch fish in Stony brook, on plaintiff's land, so that defense is out of the case. But the defendant also answered that the trespass complained of was committed by him jointly with one Jordan; that about the time this suit was instituted the plaintiff commenced an action against Jordon to recover damages for the trespass; that while both actions were pending and undetermined the plaintiff accepted and received from Jordan the sum of 50 cents in full satisfaction of said alleged cause of action, together with $1.02 costs, and released Jordan from all further liability for the trespass. The defendant pleaded that release and satisfaction as a bar to any recovery in this action.

Now, whether the acts complained of constituted a joint trespass, may, upon the evidence, admit of some doubt. The testimony of the defendant upon this point is that he and Jordan went fishing upon the plaintiff's land; that they agreed to divide, and did actually divide, the fish which they caught. This is all there is to show that the defendant and Jordan were acting in concert in the execution of a common purpose in the fishing enterprise, so as to make the act of one the act of both. Perhaps the fact that each was to have a share of the fish which should be caught rendered them joint trespassers. Be this as it may, certain it is there is nothing in the case which will warrant the inference that the plaintiff knew there was any combination or concert of action between the defendant and Jordan, so that he could hold them liable as joint wrong-doers. He commenced separate actions against them, probably upon the assumption that each was only liable for his own acts. Apparently the trespass was several in its character, and the plaintiff had the right to hold each responsible for the injury which such person had done to him. For, as a learned writer says, while the law permits all the wrong-doers to be proceeded against jointly, it also leaves the party injured at liberty to pursue any one of them severally, or any number less the whole, and to enforce the remedy regardless of the participation of the others. Cooley, Torts, 133. But, as we have said, there is nothing...