Polebitzke v. John Week Lumber Co.

• Decision Date: 08 March 1921
• Citation: 181 N.W. 730,173 Wis. 509
• Parties: POLEBITZKE ET AL. v. JOHN WEEK LUMBER CO.
• Court: Wisconsin Supreme Court

173 Wis. 509

181 N.W. 730

POLEBITZKE ET AL.

v.JOHN WEEK LUMBER CO.

Supreme Court of Wisconsin.

March 8, 1921.

Appeal from Circuit Court, Portage County; Edgar V. Werner, Judge.

Action by Barney Polebitzke and another against the John Week Lumber Company. From judgment for defendant, plaintiffs appeal. Affirmed.

Trespass. This case has been before this court on two former appeals and is reported in 157 Wis. 377, 147 N. W. 703, Ann. Cas. 1916B, 604, and 163 Wis. 322, 158 N. W. 62. Reference is had to the report of the case on former appeals as to the nature of the plaintiff's title and the boundaries of the property conveyed to the defendant and for a full statement of the facts in relation thereto. Upon the remittitur being filed in the circuit court there was a third trial at the May, 1917, term, upon which trial the jury disagreed. At the May, 1919, term there was a fourth trial which resulted in a judgment in favor of the defendant, from which the plaintiff appeals.A. L. Smongeski, of Stevens Point, for appellants.

Fisher & Cashin, of Stevens Point, for respondent.

ROSENBERRY, J.

The issues litigated upon the last trial were: First, were any of the defendant's logs carried by the water beyond the lands owned by the boom company in lots 1 and 2 and upon the plaintiffs' lands, and were any of defendant's logs lodged upon the plaintiffs' land in lot 3 above high-water mark? and, second, if so, did such lodging and their subsequent removal by defendant do any damage to plaintiffs' land?

It is undisputed that the defendant had permission from the boom company to use its lands at all the times referred to in this action. The case was submitted to the jury upon a special verdict.

The trial court divided the lots into six tracts, and the jury found that in the years, 1906, 1907, 1908, 1909, and 1910 the defendant's logs drifted and lodged upon tracts 1, 2, 4, and 5; that no logs lodged upon tracts 3 and 6 in said years. They also found that as to the tracts upon which logs drifted and lodged in said years there was no actual money loss sustained by the plaintiffs by reason of the logs drifting and lodging on the plaintiffs' lands or resulting from the removal of the logs therefrom. Upon the special verdict judgment was entered dismissing the plaintiffs' complaint with costs.

[1] Upon the motion of the defendant, the court permitted the jury to view the premises against the objection of the plaintiffs. This is the first error assigned. The contention is that because the incidents out of which the plaintiffs claimed their cause of action arose had occurred many years prior to the time of the trial, the conditions were greatly changed, due to the growth of weeds and brush, and that the situation at the time of trial was not substantially the same as the situation at the time the plaintiffs claim their cause of action arose, and for that reason it was error for the court to permit the jury to view the premises. The main questions involved related to the boundary of the lands which the defendant had a right to use and to the general situation of the plaintiffs' premises. Under the circumstances, the question of whether or...