Sanborn v. Sturtevant

• Decision Date: 01 January 1872
• Citation: 17 Minn. 174
• Parties: JOHN B. SANBORN v. ORRIN B. STURTEVANT, impleaded, etc.
• Court: Minnesota Supreme Court

Page 174

17 Minn. 174

JOHN B. SANBORN

v. ORRIN B. STURTEVANT, impleaded, etc.

Supreme Court of Minnesota.

Appeal by defendant Sturtevant from an order of the district court, Mille Lac county, denying a new trial.

Cornell & Bradley, for appellant.

Lampreys, for respondent.

McMILLAN, J.

This is an action of trespass quare clausum fregit.

The complaint avers that at the time of the alleged trespasses, the plaintiff was the owner in fee, and in the actual and legal possession of the locus in quo, consisting of several governmental subdivisions of land, described in the complaint, according to the government survey; that the defendants, and each of them, acting in concert, and aiding and encouraging each other, unlawfully, wrongfully, forcibly, and willfully entered upon the premises, and cut down, broke down, removed, and took and carried away, and converted to his and their own use a large number of pine timber trees, to-wit, more than 2,000,000 feet of good pine trees, logs, and timber, then and there standing, growing, and being thereon, which were the property of the plaintiff, and were of the value of $6,000, to the plaintiff's damage more than $7,000.

The defendant Sturtevant, answering separately and for himself, admits the plaintiff's ownership of a certain part (specifically described) of the premises mentioned in the complaint, and denies the plaintiff's ownership of the remaining portion of said premises, and avers that he, Sturtevant, is the owner in fee of certain portions of the locus in quo, particularly described in the answer; that he became such owner of a portion thereof on or about the twenty-fourth day of June, 1864, and of a certain other portion thereof on the twenty-second of August, 1864, and remained such owner of said portions, respectively, for a long time next thereafter, to-wit, until some time in the fall of 1865, when he agreed to grant and convey by a quitclaim deed all his interest and estate in said lands to the defendants Charles L. Vinal and Finley McDonald, and did subsequently, to-wit, sometime in the spring of 1866, execute and deliver to them a quitclaim deed, as aforesaid agreed, to said premises; and denies that he ever did anything otherwise in or about said premises, or gave to any person or persons any authority or permission to do anything in or about said premises or any portion thereof, save such as is implied by the giving of the said quitclaim deed granting his interest therein; denies the commission by him of the alleged trespasses, and denies each and every allegation in the complaint not specifically denied or admitted.

The defendants Vinal and McDonald, answering for themselves, put in issue the plaintiff's ownership and possession of any of the premises described in the complaint, and allege that on the first of November, 1865, the defendant Sturtevant was, ever since has been, and still is, the owner, seized and possessed of said premises and all of the same; that during the winter of 1865, and while the defendant Sturtevant was so the owner and in possession of said lands and premises, these defendants, by and with the procurement and permission of said Sturtevant, entered upon certain lands particularly described, (being part of the premises mentioned in the complaint,) and cut and hauled therefrom not to exceed 400,000 feet, or thereabouts, of pine logs, of the value of one dollar per thousand feet, and no more, and that they have long since paid the owner thereof, to-wit, Sturtevant, the full value thereof; that the defendant Vinal has since the winter of 1865-6, and while said Sturtevant so owned and possessed the same, by and with the procurement and permission of said Sturtevant, entered upon other of said lands and cut and hauled therefrom 75,000 feet, and no more of pine logs, of the value of one dollar per thousand feet, and no more; deny that they or either of them ever entered upon the lands described in the complaint, or any part thereof, or cut down or hauled away therefrom any pine timber or trees whatever, except as above stated, and deny each and every allegation in the complaint, except as above stated.

The cause was tried by jury in the court below, and resulted in a verdict for the plaintiff, whereupon the defendant Sturtevant, who answered separately, moved for a new trial, which was denied, and he alone appealed to this court.

The case comes up on a bill of exceptions. The bill of exceptions contains no reference to the testimony offered by the plaintiff in support of his title to, or his actual possession of, the premises. Both the plaintiff's title to, and actual possession of, the premises being denied, and being material issues in the action, must be presumed, the jury having found generally for the plaintiff, to have been established by sufficient evidence.

The plaintiff upon the trial offered in evidence a contract attached to the bill of exceptions, marked Exhibit A, to which the defendant objected as immaterial, irrelevant, and incompetent. The court overruled the objection and the defendant duly excepted.

The instrument offered is a contract executed by the defendants Vinal, McDonald, and Sturtevant to Joseph Dean & Co., dated the twenty-ninth of May, 1866, and containing certain recitals in substance as follows: That during the logging and lumbering season of 1865 and 1866, Vinal and McDonald cut, sold, and delivered to Joseph Dean & Co. a considerable amount of white pine saw-logs, which had been growing upon the premises described in the agreement, (the description of the lands being the same as part of the lands described in the complaint;) that Vinal and McDonald bought the right to cut the said pine saw-logs of O. B. Sturtevant, who claims to be the owner of said lands; that said Joseph Dean & Co.,...