Smith v. Briggs

• Decision Date: 01 December 1885
• Citation: 64 Wis. 497,25 N.W. 558
• Court: Wisconsin Supreme Court
• Parties: SMITH v. BRIGGS AND ANOTHER.

64 Wis. 497

25 N.W. 558

SMITH

v.BRIGGS AND ANOTHER.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Fond du Lac county.William Smith and Silas Bullard, for respondent, William Smith.

Moses Hooper, for appellants, A. G. Briggs and another.

ORTON, J.

The complaint of the respondent, plaintiff, substantially alleges that he was the owner of certain lands, and lawfully entitled to the possession of the same, when the defendant A. G. Briggs, by himself, his agents, servants, and employes, wrongfully entered upon the same, and cut thereupon and therefrom 200,000 feet of pine, and 100,000 feet of oak, basswood, and ash timber, and wrongfully removed the same from said premises, and converted the same to his own use, and sold the same to the defendant Henry Sherry, who, well knowing that said timber was so wrongfully taken by the said A. G. Briggs from said premises, purchased and received the same of and from him, and converted the same to his own use, having notice that the same had been wrongfully cut and removed from said lands of the plaintiff.

It is further substantially alleged that the highest market value of said timber so cut, removed, sold, purchased, and converted at the time it was so cut, removed, sold, purchased, and converted, and ever since has been, the sum of four dollars per thousand feet, or $1,200, and judgment is demanded of said defendants for such amount, interest, and costs. This complaint was demurred to by the defendants, on the ground of a misjoinder of defendants and causes of action. From the order overruling such demurrer this appeal is taken.

By a liberal construction of the complaint it would seem that judgment is demanded against the defendants jointly, for the value of the timber at one certain time and since that time; and that time must be when both defendants participated in the conversion, if in view of the facts alleged, there was any such time. The sale of the timber by Briggs to Sherry was, of course, participated in by both, and was, therefore, a joint conversion. The allegations of the complaint, in relation to the land of the plaintiff from which the timber was wrongfully cut, are only necessary under section 4269, Rev. St., (1) for the purpose of showing the wrongful cutting, to bring the case within said section as to the rule of damages; and (2) for the purpose of showing the plaintiff's title to the timber by his ownership of the land. The complaint is drawn under that section which allows only the value of the timber to be recovered, and there is no damage to the freehold which can be recovered as in in trespass quare clausum. If the cutting was wrongful, so also was the conversionby the defendants with notice of it, and then the damages are the highest market value at any time since; but if by mistake, and the conversion by the defendants, with notice only of such mistake, then the damages are the value of the timber when cut. The action is to recover the possession or value of the timber cut under this section, and not for the trespass or damage to the...