58 Wis. 379 | Wis. | 1883
We think the affidavit of mistake was sufficient, although made bj? one of the defendants. It was made by one on behalf of both, and in analogy to the law which
The objection that the offer of judgment was insufficient because it did not offer judgment for costs is not well taken. It is true, the statute says the defendant shall offer judgment for the amount of damages tendered, with costs, but it seems to us that the offer that the plaintiff may take judgment for costs in addition to damages is superfluous. When the defendants consent that plaintiff may take judgment against them for $992 damages, it is in effect a consent to judgment for costs in addition to the damages. Under the statute giving costs to the successful party, the plaintiff, upon taking judgment for the damages tendered, would be entitled to have her costs of the action. It does not appear from the record that any objection to the sufficiency of the affidavit, or the offer of judgment, was made on the trial in the circuit court. The case was tried as though a sufficient affidavit and offer had been made, and it is too late to raise the objection for the first time in this court.
The plaintiff, by her counsel, requested the learned judge to instruct the jury as follows:
(1) “ It was the duty of the defendants, when putting their employees at work cutting their own timber, to inform their said employees of the location and boundary lines of their said lands, or else to sufficiently supervise such work so as to prevent said employees trespassing on adjoining*384 lands; and if such employees, for want of such information or supervision, committed the trespass alleged in the complaint, then the defendants are estopped from now claiming that such trespass was by mistake.
(2) “ If, in fact, the defendants, or any one of them, did inform and show such employees the locality of defendants’ land, and the boundary line between the plaintiff’s and defendants’ lands, prior to the committing of such trespass, and such employees did thereafter carelessly or heedlessly cross such line, using no care or pains to observe such line on defendants’ or plaintiff’s land, and commit such trespass and cut said plaintiff’s timber, then the defendants cannot now claim that such cutting was by mistake.
(3) “If the jury find that the range line between the plaintiff’s and defendants’ land was plainly blazed or marked, so that the defendants’ employees, by the exercise of ordinary care and attention, must or could have seen such marks, and known they were crossing such range line, then they, as well as the defendants, are to be charged with knowledge that they were trespassing, and cannot now claim that the cutting of the plaintiff’s timber was by mistake.”
These instructions the learned court refused to give, and to such refusal due exception was taken.
The learned judge instructed the jury upon the subject of mistake as follows: “ The important question in this case is whether this was done by mistake or not. If it was a cutting done by design, purposely, knowingly, the plaintiff then is entitled to recover the highest market value or price of the saw-logs taken from the plaintiff’s land, at Stevens Point in the boom.
“ If it was a mistake, if the cutting was done by an accident or mistake, then in this case the defendants having made an affidavit that it was done by mistake, and tendered judgment, then the defendants are liable for the true value of the stumpage on the amount taken.
“ So that it is the important question to ascertain whether
“ If it was a wilful and intentional trespass, the plaintiff is entitled to recover the highest-market value of the saw-logs; . . . but if done by mistake and unintentionally, then the plaintiff is only entitled to recover the value of the stumpage, with ten per cent, added to that valuation.
. “What is a mistake? Why, it is the doing of some act unintentionally,— doing some act through a mistake or misapprehension. As, for instance, in this case, if the defendants or their men thought when they were cutting this timber that they were cutting on defendants’ land, that is a mistake.
“It is the distinction between doing a thing knowingly and purposely, and doing % thing ignorantly and without intention of doing it as it was done. It is not a matter of negligence; it is a condition or purpose of the mind.
“Now, you have heard the testimony in this case, and it is for you to determine from it whether this cutting was wilfully, designedly, and purposely, or whether it-was done through a misapprehension,— a mistake as to where the Boundary line was.”
Exceptions were taken by the plaintiff to each paragraph of the charge above quoted.
I have quoted at length from the charge, in order to show that'the learned circuit, judge purposely excluded from the jury all consideration of the carelessness or negligence of the defendants, or their servants and employees, in ascertaining the boundary line between the plaintiff’s and defendants’ land, as bearing upon the questioh of mistake in cutting the timber of the plaintiff, which would relieve the defendants from the payment of the larger damages given by the statute. He, in effect, told the jury that the defendants were under no duty or obligation to the plaintiff to take any care dr use any means to ascertain whether they were cutting
There can be no doubt that the legislature interfered, and
In none of these cases have the court considered the real question in the case at bar. In giving construction to the word, we ought to construe it, if consistent with the language used, so as to uphold the purpose of the legislature rather than to defeat it. To give it the construction given by the learned circuit judge, and which is contended for by the learned counsel for the respondents, would, we think, defeat the very purpose of the statute. If a trespasser can avoid the larger damages given by the statute bjr simply neglecting to take any precaution to ascertain whether he is cutting upon his own land or upon the land of his neighbor, and avoid the effect of the statute by alleging such want of precaution on his part, it will open a wide door for those who are disposed to despoil their neighbor’s land of the growing timber to do so and avoid the damages given by the statute. Every person who cuts timber upon his own land, or who intends so to do, owes a duty to the adjoining owner to ascertain the boundary line of the adjoining lands, if he can with reasonable diligence and care, so as to avoid trespassing upon such adjoining land; and if he neglects' such duty, and recklessly, negligently, and carelessly cuts beyond his own premises, he cannot be said to have done so by mistake, but jby reason, of his carelessness and negligence. If the person cutting the timber was under no obligation of duty to the adjoining owners to avoid cutting upon their lands, and he heedlessly, carelessly, and negligently cut upon such adjoining lands, there might be some plausibility in holding that such cutting would come within the meaning of “ mistake ”
If a person cuts timber upon his own land, and while doing so carelessly and heedlessly cuts across the line upon his neighbor’s land, such carelessness is a neglect of his duty, and is evidence of a want of good faith on his part,
We think the second and third instructions asked by the appellant should have been given to the jury, and that the court erred in the instructions given, especially in instructing the jury that the question of negligence was not in the case.
The learned counsel for the respondents argued in this court that his clients were not responsible for the acts of the parties who cut the timber in question, for the reason that they cut the same under a contract which gave them the entire control of the cutting, and therefore the relation of master and servant or employee did not exist between his clients and the persons who did the cutting. We cannot consider that question upon this appeal, as it clearly appears from the record that no such question was raised in the court below, and the affidavit and answer of the defendants both allege that the timber was cut by their servants and employees, and the whole record shows that the case was 'tried upon that theory alone, and not upon the theory that the persons cutting the timber were acting as independent contractors.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.