St. Croix Land & Lumber Co. v. Ritchie

• Decision Date: 13 January 1891
• Citation: St. Croix Land & Lumber Co. v. Ritchie, 78 Wis. 492, 47 N.W. 657 (Wis. 1891)
• Parties: ST. CROIX LAND & LUMBER CO. v. RITCHIE.
• Court: Wisconsin Supreme Court

78 Wis. 492

47 N.W. 657

ST. CROIX LAND & LUMBER CO.

v.RITCHIE.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from circuit court, Taylor county; J. K. PARISH, Judge.

Rev. St. Wis. 1878, § 4269, as amended by Laws 1882, c. 239, provides that in an action to recover the highest market value of timber wrongfully cut from plaintiff's land, “when defendant shall have in good faith acquired a title to and entered upon the land under the same, believing such title to be valid, and shall have cut the timber therefrom under such circumstances, then the plaintiff, if he shall recover, shall recover only the actual damage sustained by reason of such cutting.”John B. Hagarty and W. F. Bailey, for appellant.

Clapp & Macartney and Corning & Textor, for respondent.

COLE, C. J.

The question in this case is, had the plaintiff title to the land from which the timber in controversy was cut at the time of such cutting? It derives its title through a tax-deed which was executed to Taylor county, and recorded on the 20th day of August, 1880. When the case was here on a former appeal, it was decided that this tax-deed was in due form and was properly recorded. 73 Wis. 409, 41 N. W. Rep. 345, 1064. It is alleged in the answer that the premises are wild and unoccupied, and have been vacant since they were entered from the government, save and except the occupation by the original owners, and that the plaintiff has not the title to them. The inquiry therefore is, does the proof in the case show such possession and acts of ownership upon the land on the part of the original owner as will interrupt the running of the statute of limitations in favor of the grantee under the tax-deed? This is really the only material question in the case, and must be resolved by the evidence given on the trial. The tax-deed included 11 forties in section 11, township 33 N., of range 1 E. The lands were not cultivable until they were cleared up, and their chief value and use was for lumber purposes. The trial court found that, from the time the logging season of the year 1877-78 ended until the month of October, 1880, neither Mr. Owen, who represented parties who, for convenience, are spoken of in the testimony as the “Rusts,” nor any one of the original owners of the lands, entered upon the same or occupied the same for any purpose connected with the business of cutting or removing the pine timber from the lands, but that during that time they were occupied in cutting and removing pine timber from other lands in the same and adjoining townships, having their logging camps located on such other lands or some portions thereof; that the Rusts occupied the logging camp upon section 12, adjoining section 11, during the summer of each year, having a man in charge thereof, and that some portion of the cattle which they used in their logging operations upon their lands, other than those described in the complaint, were in charge of this man, who permitted the cattle to roam indiscriminately over the lands contiguous to section 12, without reference to whether the lands were owned by the Rusts or other persons, and said cattle were once or twice in each week gathered together upon section 12 by this man; that, during the first year that the Rusts or other persons were engaged in their logging operations upon the lands described in the complaint, they built a flooding dam to aid them in driving the logs which were cut off from the lands, which dam was built upon the S. W. 1/4 of the S. E. 1/4 of section 11; that this dam remained and was used for flooding purposes in subsequent years, until the summer of 1880; that a freshet carried away the south wing of the dam, and that in October, 1880, the Rusts entered upon the land where the dam was situated for the purpose of repairing the same, so that the dam might be used the next driving season to aid them in driving logs cut off from their other lands; that the parties were engaged one month in repairing the dam; that the greater portion of the timber which was required and used in reconstructing the south wing of the dam was cut from the S. 1/2 of the S. E. 1/4 of section 11, but that some timber was taken from other portions of section eleven, 11; that the evidence does not disclose definitely what particular 40-acre tracts the timber was taken from, the same being taken promiscuously, wherever the men happened to find a piece which they deemed suitable, whether the same was taken from land which was previously owned by the Rusts or by other parties, but that it was clear that no part of the timber was taken from the S. E. 1/4 of the N. E. 1...