89 Wis. 421 | Wis. | 1895
It is undisputed that Schmit Bros. & Co. cut 40,000 feet of pine from the land less than ten inches at the top. Such pine was expressly reserved by Everett in the contract. The value of such pine was $3 in the stump and $10 when manufactured into lumber. The trial court refused to allow judgment for the larger amount, and ordered judgment for the smaller amount. The statute provides, in effect, that in all actions to recover the- value of timber wrongfully cut upon the land of the plaintiff the highest market value of such timber in whatsoever place, shape, or
It is contended, however, that the statute only applies where a person wrongfully goes upon the land of another; that here Schmit Bros. & Co. had, under the contract, the right to go upon the lands in question and out certain timber, and that they simply violated their contract by cutting what they had agreed not to cut;, and hence that the claim is, in effect, for damages for such breach of the contract. But they had no more right to cut the timber thus expressly reserved in the contract than they would have had to cut upon other lands belonging to JEhjerett. True, Schmit Bros. & Co. might have cut with much more certainty had the limit of the timber to be cut been fixed in the contract by a measurement at the butt; that is to say, there Avas necessarily more or less uncertainty as to .whether a given tree
It is true that the statute authorizes the recovery of the highest market value of the manufactured product of the timber so cut in “ actions ” brought against the wrongdoer. But the statute goes to the right of action, and not necessarily to the form of the remedy. Where, as here, the cause of action has accrued, we do not think the recovery should be defeated merely because the property of the wrongdoers has been put in the hands of a receiver, and the person who has sustained the loss has presented his claim for allowance. The claim for the largest amount found by the court, with interest, should have been allowed.-
The right to recover costs in an action or proceeding in this state is purely statutory. No statute is cited which gives to the claimant here costs as a matter of right. Unless there is such a statute, therefore, the claimant is in no position to claim costs as a matter of right. Whether the trial court had the discretionary authority to allow costs was not discussed and is not determined.
By the Gourt.— The judgment of the county court is reversed, and the cause is remanded with direction to enter judgment in favor of the claimant as indicated in this opinion.