Whitney v. Detroit Lumber Co.

• Court: Wisconsin Supreme Court
• Citation: Whitney v. Detroit Lumber Co., 78 Wis. 240, 47 N.W. 425 (Wis. 1890)
• Decision Date: 16 December 1890
• Parties: WHITNEY ET AL. v. DETROIT LUMBER CO.

78 Wis. 240

47 N.W. 425

WHITNEY ET AL.

v.DETROIT LUMBER CO.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Marinette county.

This action is to recover the value of 322,000 feet of white pine saw logs, which had been cut from section 9 in township 39 N. of range 15 E., in Wisconsin, described and alleged to be worth $3,220, which it is alleged the defendant wrongfully took, May 25, 1888, from the possession of the plaintiffs, and brought into Marinette county, and there unjustly detained, to the plaintiffs' damage in the sum stated, and for which value and damages, judgment is demanded. The answer is a general denial. The action was tried by the court without a jury, and the court made and filed findings of fact and conclusions of law to the following effect: That the shores of the lake within the boundaries of said section were the same in November, 1864, as at the time of the trial; that in November, 1864, all the lands in said township were surveyed and subdivided by surveyors employed by the United States, and a plat thereof made and certified to the general land-office by the surveyor general of the United States; that said survey and plat showed said lake as extending much further north and east in said section than the fact was or is, and the north shore thereof as extending entirely across the E. 1/2 of the N. W. 1/4 of said section, and north of the north eighth line of said section, so as to leave but about 26 acres in said E. 1/2 of said N. W. 1/4; that said lake extended so far into said section as to make all of the quarters of said section fractional; that the lands in the W. 1/2 of the N. W. 1/4 of said section were designated by said survey and plat as “Lot 2;” that those in the E. 1/2 of said N. W. 1/4 section were designated as “Lot 3;” that all the lands in the S. W. 1/4 of said section were therein designated as “Lot 8;” that all the lands in the W. 1/2 of the N. E. 1/4 of said section were thereon designated as “Lot 4;” that all the lands in the W. 1/2 of the S. E. 1/4 of said section were designated thereon as “Lot 7;” that the lands in the S. E. 1/4 of the N. E. 1/4 of said section were designated thereon as “Lot 5;” that the lands in the N. E. 1/4 of the S. E. 1/4 of said section were designated thereon as “Lot 6,” (as is more exactly shown by a certified copy of said plat in the record, and made a part of the findings;) that said survey and plat, so made by the government, were erroneous, and did not correctly show the location of said lake within said section; that while the end of the lake extends into the section from the west, no part of it extends to the E. 1/2 of the N. W. 1/4 of said section, but that the shore of said lake extends into, and about one-half way across, the E. 1/2 of the S. W. 1/4 of said section; that the north shore of said lake intersects the west eighth line of said section about 50 rods south of the east and west quarter line; that the correct location of said lake is, as shown by the diagram, made a part of the findings; that prior to July 1, 1867, the plaintiffs' grantors entered and paid for and selected certificates of purchase for said lots 3, 4, 5, and 8 of said section, according to said government survey and plat; that prior to 1885 the plaintiffs became the owners in fee-simple of said lots 3, 4, 5, and 8, and have ever since continued to own the same; that during 1886 one James Long, claiming that the land in the said section between the shore of said lake and the meandered line of said shore, as shown by said government plat and survey, was unsurveyed land belonging to the United States, entered upon the same, cut a little timber on the S. E. 1/4 of said N. W. 1/4, built a small shanty thereon, and raised a few bushels of potatoes, planted among the fallen trees; that during each of the years 1887 and 1888 said Long raised a few potatoes in the same place and manner; that in the spring of 1888 he contracted with the defendant to sell it such timber as he had and should cut from the lands upon which he had so entered, and the same, when cut into sawlogs, amounted to 322,000 feet, board measure, and the same were sold and delivered by said Long to the defendant; that said Long has since retained the possession of said lands from which the timber in question was cut; that the value of said logs, in the boom at Marinette, at the time of the commencement of this action, was $9.50 per 1,000 feet, board measure, or $3,059 in the whole; that there was no evidence of the value at any other time or place; that prior to the defendant's purchase of the same, it was informed of the facts relating to Long's claim of title as stated; that all the logs in question were so cut from the said S. E. 1/4 of the N. W. 1/4 of said section, which, according to such government survey, was wholly in the lake; that, according to the true plat and survey thereof, the lands from which said logs were so cut were wholly south of the river delineated on said map; that said river does not flow into said lake at all, but enters the N. W. 1/4 of said section from the east, some distance south of the south line of the N. E. 1/4 of that quarter section, and runs westerly to the eighth line of said section, or thereabouts, and then substantially follows the north and south eighth line to the north line of the section; that said Long entered upon the said lands in 1886, and continued in such possession for the purpose of locating the same, and other adjacent lands, as a homestead under the laws of the United States; that the defendant purchased said logs of Long in good faith without any notice or knowledge that the plaintiffs claimed title to said premises, or the logs cut therefrom, except such as might be imputed in law,--and as conclusions of law the court found that “the plaintiffs were, at the time said timber was cut, the owners in fee-simple of the premises from which it was cut, and entitled to the possession of the same; that the timber as fast as severed from the premises became the personal property of the plaintiffs, and that they were entitled to the immediate possession of the same; that the defendant wrongfully took and now holds said logs; that the plaintiffs are entitled to judgment against the defendant for the value of said logs, to-wit, $3,059, with interest thereon at 7 per cent. from the commencement of this action, and for costs, and it is ordered that judgment be entered accordingly.” From the judgment entered thereon accordingly, the defendant brings this appeal.Eastman & Mountain and Van Dyke & Van Dyke, for appellant.

Fairchild & Fairchild, for respondents.

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

The logs in question were cut and removed from the S. E. 1/4 of the N. W. 1/4 of the section, had it been full. That 40, according to the United States government survey, was wholly in the lake, but, as a matter of fact, no part of it was ever in the lake, but the whole of the same was high and dry ground, except that Pine river, which is not a navigable stream, runs through the northern portion of it. The plaintiffs claim title to the locus in quo wholly by virtue of having acquired the title to fractional lot numbered 3 in said section, according to such government survey. That fractional lot, according to that survey, contained only 26 acres, and was wholly in the N. E. 1/4 of the N. W. 1/4 of the section, had the same been full, and no part of it was ever in the lake. The plaintiffs contend that, as the lake does not, and never did, in fact, touch the E. 1/2 of the N. W. 1/4 of that section, such fractional lot numbered 3 must be construed as extending south to the quarter line, and hence as including the whole 80. On the other hand, the defendant contends that such fractional lot numbered 3 does not extend south of the eighth line, but is confined to the N. E. 1/4 of the N. W. 1/4 of the section. Both parties cite, in support of their respective contentions, a decision of this court wherein it was held that “where there is a mistake in the government survey of a fractional lot, so that either the line of a meandered stream or a quarter-section line (both of which are called for by the survey as constituting the boundary between two fractions) must be abandoned, the quarter-section line should be adhered to as the more certain call.” Martin v. Carlin, 19 Wis. 454. That case is referred to approvingly in Shufeldt v. Spaulding, 37 Wis. 668, where the territory of Wisconsin acquired from the United States a fractional section of land which, according to the United States government survey, was wholly on the E. 1/2 of the section, had it been full, and the same was thereon divided into three fractional lots in such a way that lots 1 and 2 were wholly in the N. E. 1/4 of the section, and together contained 119.40 acres, and lot 3 was wholly in the S. E. 1/4 of the section, and contained 43.55 acres. According to such survey, the whole of the W. 1...