Polebitski v. John Week Lumber Co.

• Decision Date: 21 May 1914
• Docket Number: No. 121.,121.
• Citation: 157 Wis. 377,147 N.W. 703
• Parties: POLEBITSKI ET AL. v. JOHN WEEK LUMBER CO.
• Court: Wisconsin Supreme Court

157 Wis. 377

147 N.W. 703

POLEBITSKI ET AL.

v.JOHN WEEK LUMBER CO.^*

No. 121.

Supreme Court of Wisconsin.

May 21, 1914.

Appeal from Circuit Court, Portage County; A. H. Reid, Judge.

Action by Barney Polebitski and another against the John Week Lumber Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded for new trial.

This is an action for trespass. The complaint alleged: That between April 20, 1906, and October 20, 1910, plaintiffs were the owners in common and in possession of the following described premises:

“All of lots 1 and 2 and the north four and six-tenths acres of lot 3, and the northwest quarter of the southeast quarter, all in section 15, township 24 north, of range 7 east, excepting a strip of land one rod wide along the meandered shore bordering on the Wisconsin river, including lakes and bayous leading into the Wisconsin river, for the purpose of rafting and boomage, with all the rights and privileges pertaining thereto, being on lots 1 and 2 in said section, township, and range aforesaid.”

That between the above dates the defendant floated its logs past the plaintiffs' premises during the spring of each year when the water was high, and unlawfully allowed part of said logs to drift upon and remain each year on plaintiffs' property after the water receded to its normal level, and that during the summer of each year the defendant, in removing said logs, tore up the sod and tramped down the grass on 28 acres of plaintiffs' premises, by reason of which they were prevented from harvesting crops of hay, and from pasturing 15 acres of land, to their damage in the sum of $379.50.

The answer of the defendant alleged that the logs when floated down the river were stored in what is known as the Stevens Point Boom Company's boom, the upper divide of which is less than a mile from the land above described; that on January 28, 1888, the Webster Manufacturing Company conveyed to the Stevens Point Boom Company the strip of land above described, which deed of conveyance was duly recorded; and that the defendant as a patron of the Stevens Point Boom Company has the right to use said strip of land for the purpose of rafting, boomage, and driving its logs down the Wisconsin river and into the company's boom, and that it has never exercised any rights other than those to which it is entitled by virtue of said conveyance. By the deed from the Webster Manufacturing Company to the Stevens Point Boom Company, the grantor “granted, bargained, sold, remised, released, aliened, conveyed, and confirmed, and by these presents does give, grant, bargain, sell, remise, release, alien, convey, and confirm, unto the said parties of the second part, its successors and assigns, forever, the following described real estate situated in the county of Portage and state of Wisconsin, to wit:” Then follows a description of a parcel of land by metes and bounds said to contain 9.52 acres. This was followed by the conveyance of two other strips of land not involved in this action. The deed then continues:

“Also a rod wide along the meandered shore bordering on the Wisconsin river, including lakes and bayous leading into the Wisconsin river, for the purpose of rafting and boomage, with all the rights and privileges thereunto pertaining, being on lots number 1 and 2 of section 15, in township number 24, range 7 east. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and all the estate, right, title, interest, claim, or demand whatsoever of the said parties of the first part, either in law or equity, either in expectancy of or possession, in and to the above-bargained premises and their hereditaments and appurtenances. To have and to hold the said premises as above described, with the hereditaments and appurtenances, unto the said parties of the second part, and to its successors and assigns, forever.”

Then follows the usual warranty clause.

The jury returned a verdict in favor of the plaintiffs, and in accordance with such verdict judgment was entered. From such judgment, defendant appeals.Fisher, Hanna & Cashin, of Stevens Point, for appellant.

A. L. Smongeski, of Stevens Point, for respondents.

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

As we read the complaint, no claim is made in it for any damages resulting from permitting logs to lie on the part of lots 1 and 2 of section 15. township 24 N., of range 7 E., conveyed by the Webster Manufacturing Company to the Stevens Point Boom Company. We find the following admission in the record, made by plaintiffs' counsel near the close of the trial:

“I admit that we have no right--that is, the plaintiffs--to a strip of land one rod bordering on the Wisconsin river and the bayou.”

It was stipulated on the trial that the Webster Company owned this parcel of land when it conveyed the same, and that the defendant had acquired such right to use this strip as the Boom Company possessed under this deed. It was also stipulated that the plaintiffs obtained their title through mesne conveyances from the Webster Company. There is no claim but that the conveyance to the Boom Company was prior in point of time, or that its deed was not seasonably recorded. The conveyance from the Webster Company under which plaintiffs claim does not appear to be in the record, so we have no means of knowing what recitals such deed contains. This is not material, however; the priority of the deed to the Boom Company being conceded. The circuit court construed this deed as granting an easement only, and charged the jury as follows:

“This right of rafting and boomage does not, however, include any right to allow logs to remain on this strip for a considerable period after they shall have lodged, and the water has receded, nor the right to go on and remove the logs after they shall have so remained there, without paying for the injury occasioned by such remaining and subsequent removal.

You are to consider whether the defendant, in any or all of the years 1906, 1907, 1908, 1909, and 1910, allowed its logs to lodge and remain upon the one-rod strip longer than was reasonably necessary for their removal, * * * and, in case you find that it did, then you should return a verdict in favor of the plaintiffs for the amount of such damage.”

The defendant excepted to each of these paragraphs of the charge. We find it difficult to ascertain from the evidence to what extent logs were permitted to remain on plaintiffs' land outside of the one-rod strip; but there can be no doubt that damages were allowed under the charge for permitting them to remain on the parcel of land conveyed to the Boom Company. If the charge was incorrect, the judgment must be reversed, and the only question presently involved is the extent of the rights acquired in this strip by the Boom Company under its deed.

[1][2][3] In construing deeds, as in construing other instruments, the courts aim to arrive at the intention of the parties. Where there is no ambiguity in the language used, the intent must be arrived at from such language. C., M. & St. P. Ry. Co. v. H. W. Wright Lumber Co., 123 Wis. 46, 50, 100 N. W. 1034;Barkhausen v. C., M. & St. P. Ry. Co., 142 Wis. 292, 297, 124 N. W. 649, 125 N. W. 680;Wallis...