Reed v. Chi., M. & St. P. Ry. Co.

• Decision Date: 27 March 1888
• Citation: 71 Wis. 399,37 N.W. 225
• Court: Wisconsin Supreme Court
• Parties: REED v. CHICAGO, M. & ST. P. RY. CO.

71 Wis. 399

37 N.W. 225

REED

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Juneau county; ALVA STEWART, Judge.

The complaint alleges, in substance, that Hugh T. Reed, the plaintiff, is the owner in fee of a tract of land consisting of seven forty-acre lots, described in the complaint, through which tract the railway of the defendant, the Chicago, Milwaukee & St. Paul Railway Company, is constructed and operated; that through the negligence of the railway company, its servants and employes, fire was communicated from its locomotives, at three several times, to dry grass and other combustible materials which the company had negligently suffered to accumulate and remain on its right of way, from whence the fires spread and burned over portions of the plaintiff's land, destroying large quantities of cranberry vines, shoots, and berries growing thereon, of great value, and greatly injuring and decreasing the productiveness of such land. The damage occasioned by each fire is stated as a separate cause of action. These are alleged to have occurred in August, 1883, July 6, 1886, and July 24, 1886, respectively. The damages claimed for the first fire are $5,000; for the second, $11,500; and for the third, $1,918. The answer denies the plaintiff's title to the land described in the complaint, and the negligence charged therein; also that the plaintiff was damaged by the fires. At the close of the trial the court held that there was no testimony tending to prove the negligence of the defendant company in respect to the two fires of July, 1886, and submitted to the jury only the question of the liability of the company for the damages caused by the fire of 1883. The jury returned a verdict for the plaintiff, assessing his damages at six cents. Thereupon the plaintiff moved the court to set aside the verdict, and for a new trial. The motion was granted. The order granting the same was as follows: “After a careful examination of a portion of the testimony written out by the reporter, and authorities to which I have been referred since the motion of the plaintiff's counsel to set aside the nonsuits and the verdict, and for a new trial, I have come to the conclusion that, in the present state of the testimony, the nonsuits, and especially that on the second count in the complaint, ought not to have been granted; that the question whether or not there was negligence on the part of the defendant company, in consequence of the condition of its right of way at the time of the fire in July, ought to have been submitted to the jury. For this reason the entire motion is granted, and a new trial granted on the entire complaint.” The defendant appeals from such order.John W. Cary, ( Burton Hanson and John T. Fish, of counsel,) for appellant.

Carter & Carter, for respondent.

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

1. The title to the lands alleged to have been injured by the negligence of the defendant company is put in issue by the pleadings. Such lands were vacant and uncultivated. On the authority of several cases heretofore adjudicated by this court, it was incumbent upon the plaintiff to prove his title. McNarra v. Railway Co., 41 Wis. 69;Hungerford v. Redford, 29 Wis. 345. Moreover, the plaintiff claims for continuing damage by reason of the reduced productiveness of his land. Probably, on the authority of Winchester v. Stevens' Point, 58 Wis. 350, 17 N. W. Rep. 3, 547, it was incumbent upon him to prove his title, even though he was in actual possession of the land at the time of the alleged injury.

It is maintained on behalf of the defendant that the plaintiff made no proof of any title to the lands in question, and that a motion for a nonsuit, made during the progress of the trial, although based only upon the alleged want of proof of defendant's negligence, or of damage to the plaintiff, should have been granted for such want of proof of the plaintiff's title. Counsel for the defendant invoke the rule...