57 Wis. 24 | Wis. | 1883
We think the evidence shows .such a possession of the premises in question as will support an action of trespass against mere intruders, claiming no title in themselves or in those under whom they claim. If the plaintiff had in fact purchased the tract in question, and obtained a conveyance thereof, and entered into the actual possession of a part of the lands so purchased under claim of title to the whole, he would be deemed in the actual possession of the whole tract for the purpose of maintaining an action for a trespass thereon by one claiming no right or title thereto. His possession, as a general rule, extends to the whole tract conveyed by the deed under which actual possession is taken. The defendants called out the evidence that the plaintiff took possession of the premises under some kind of a paper title, which extended to the entire four forties; and the evidence is as conclusive on them as though the paper title had been given in evidence by the plaintiff. Had they objected to parol evidence of the plaintiff’s title it is probable that he
The second objection, that the evidence does not show that the timber in controversy was cut upon the lands of the plaintiff, was a pure question of fact for the jury, and unless, as is claimed by the learned counsel for the appellant, there is no competent evidence tending to show what was the true west line of plaintiff’s land, the verdict of the jury upon that question is final. The evidence is undisputed that the northeast corner of plaintiff’s land is the northeast corner of section 11 in the town of Lincoln; and it is also undisputed that the northeast corner of section 11, as located by the government surveyors, cannot be found, and that the same was probably never marked in fact by such surveyors on the ground; that such corner may be termed a lost or missing corner. The southeast and the southwest corners of plaintiff’s land are known corners, and both .sets of surveyors called as witnesses bn the trial agree in the location of such corners. It is insisted that no surveys made for the purpose of establishing the northeast corner of section 11 are admissible as evidence for that purpose, unless such surveys be made in strict accordance with the statutes of the United States and the rules and regulations made by the secretary of the interior in conformity thereto. And it is claimed by the learned counsel for the appellant that none of the evidence introduced on the part of the plaintiff tending to show the location of that corner was competent for that purpose, and consequently there is no evidence in the case showing the northeast or northwest corner of plaintiff’s land: so that the west line of plaintiff’s land is not shown,
There are two answers to this claim of the defendants: First, the defendants did not object on the trial to the evidence offered by the plaintiff tending to show the location of his west line, on the ground that the surveys made by his witness were not made in strict accordance with the rules and regulations of the secretary of the interior upon that subject. If the rules and regulations of the secretary of the interior are such as it is now contended by the counsel for the appellants they are, then it is evident that neither party tried the case in the court below upon the theory that the surveys, in order to be admissible as evidence, must be made in accordance with such rules. It is not claimed that the surveys offered in evidence on .the trial by the defendants were made in strict accordance with such rules. We must hold, therefore, that if there be any law of this state which requires the surveyor to proceed in a prescribed way in locating a lost or missing corner, the parties waived the objection to the evidence offered that it did not comply with such rule of law. Second, we do not find that there is any such rule as contended for by the learned counsel for the defendants established by any law of this state. The- only law on the subject is sec. 'll0, R. S. 1878, which reads as follows: “ Whenever a surveyor is required to subdivide a section or smaller subdivision of land established by the United States survey, he shall proceed according to the statutes of the United States and the rules and regulations of the secretary of the interior in conformity thereto.” It is clear to me that this section has no .reference to the establishment Of lost or missing corners of sections or other greater or lesser subdivisions of government lands. We have found no statute of the United States which prescribes how a lost or missing corner shall be established, and have been
It was claimed on the trial by both parties that the evidence offered by them respectively tended to locate the true west line of the plaintiff’s land, and from our examination of the evidence as stated in the printed case we think this claim was justly made by both. The plaintiff’s testimony certainly tends to prove where the northeast corner of section 11 was in fact located or intended to be located by the original United States surveyors. The statutes of the United States require the north and south lines of sections to be run north and south on the true meridian, and the presumption is that they were so run, unless the lines marked and corners fixed by. such surveyors upon the ground contradict that presumption. The presumption is that the interior north and south lines of a section are run in the same direction as the east line of the township.
In stating the method of subdividing a' township the instructions of the commissioner of the general land office to the surveyors are as follows: “ (1) ■ The first mile, both of the south and east boundaries of each township you are required to subdivide, is to be carefully traced and measured before you enter on the subdivision thereof. This will enable you to observe any change that may have taken place in the magnetic variation, as it existed at the time of running the township lines, and will also enable you to compare the chaining with that upon the township lines.” “ (2) Any discrep
The surveyor, upon whose evidence the plaintiff relies for the correctness of the west line of his land, proceeded upon’ the theory that the east line of section 11 should be parallel with the east township line. On the presumption that the surveyors had followed these instructions, and in order to so establish such east line, he first ran the line on the east town line from the known southeast comer of section 12, as established by said surveyor, half a mile north to a like known quarter-post on the east side of section 12, and found the bearing of that line was 3 deg. and 40 min. What the witness meant by the expression that the bearing of that line was 3 deg. and 40 min., is not made very clear by the printed case, but from what he says subsequently it is probable that he meant that the line was run on the true meridian, supposing the magnetic variation to be 3 deg. and 40 min. east at the time he made his survey; but it is not very material what he in fact meant by this expression, as the other lines run by him were found- to run in the same direction. He ran a line from the southwest corner of section 36 north to the southeast corner of section 11, and he claims in running that course he struck the northwest corners of 36, 25, and 24, and the west quarter-posts of said sections, and came out within a few feet of the southeast corner of section 11; he then ran
We think the fact that all the lines run in said township between points known to be corner posts and quarter-posts set by the original surveyors, correspond in direction with
As it is not contended that the evidence given by the defendant of the locality of plaintiff’s west line was absolutely conclusive as to its location, it becomes unnecessary to state it or comment upon it. Both parties having introduced competent evidence as to its true location, it was for the jury to determine the question of fact, and not for the court. Barden v. Smith, 7 Wis., 439.
The claim of the defendant that the court should have ordered a nonsuit because the proofs did not show that the defendant W. Swaty had ever been on the plaintiff’s land, was properly denied for two reasons: First, there was no request to nonsuit as to the defendant W. Svjaty, alone — the motion was to nonsuit as to both; second, a failure to prove that W. Swaty had ever been on the plaintiff’s land was not conclusive that he was not liable for the trespass charged in the complaint. The evidence shows conclusively that he was the partner in business of the other defendant, and tended to show that he had the benefit of the trespass of his pa-rt-ner, if he had committed any, and that the trespass, if committed by his partner, was for the benefit of the firm. Tucker v. Cole, 54 Wis., 539.
It is claimed that the court erred in directing the jury to assess the damages at the market price of the posts and ties at Ahnapee. This objection seems to be based upon the idea that the plaintiff- did not show that he was the owner of the land from which the property was taken, and so did not bring
In the complaint the plaintiff alleges that he was the owner of and in possession of the lands in question. On the trial he made proof of his actual possession. This proof, uncontradicted, was evidence as against a mere trespasser, not only of possession but of ownership by the plaintiff. A party in the actual and quiet possession of real estate is presumed to be the owner thereof until there is some proof to the contrary. This evidence brought the defendant within the provisions of said section, and entitled the plaintiff to damages, as assessed by the jury, if the defendants were shown to have been connected with the cutting and carrying away. The fact that the plaintiff’s evidence did not show the exact number of posts and ties cut and carried away, does not prevent him from recovering for any. It is for the jury to say, upon the whole evidence, how many were taken, and if there be evidence in the case tending to show that there were as many cut and carried away as the jury assessed damages for, the verdict must stand. There was certainly evidence tending to prove that the number found by the jury, viz., 2800 ties and 950 posts were cut and carried away. We think it quite clear that the evidence tends to show that the defendants were connected with the cutting and carrying away of the plaintiff’s timber, and had notice that the plaintiff claimed to own the lands from which it was cut before any of it was taken from his land. If the defendants bought the ties and posts after they were cut and before they were removed from the plaintiff’s land, and afterwards removed them, knowing that the plaintiff claimed to own the lands on which they were cut, and that he claimed' that the persons
"W e think the evidence of the plaintiff, showing the fact that the defendant’s minor son drew a part of these ties and posts from the plaintiff’s land with the defendant’s team, and that he was informed by the plaintiff that he claimed to own the land on which the ties, etc., were situated and forbid his taking them away, was competent. The presumption is that a minor child, living with his father, and using his team and conveyance in and about the business of such father, is acting on his behalf and upon his directions until the contrary is made to appéar by evidence. The evidence of the father, afterwards given, undertook to explain in whose interest the son was at wTork. No wrong was done to the defendants by the admission of this evidence.
The other evidence, which it is said was improperly admitted, does not seem to have been objected to by the defendants. That which the defendants moved to strike out as hearsay evidence was not acted upon by the plaintiff’s surveyor, and could not, therefore, have prejudiced the 'defendants. The hearsay evidence given by the defendants’ surveyor, and which was stricken out on motion of the plaintiff, was acted upon by such surveyor in establishing
It is objected by the counsel for the defendants that the fourth question submitted to the jury as a part of their special verdict was improperly submitted to them, and that the affirmative answer to it given by the jury does not establish the fact that the defendants, or either of them, were guilty of the trespass complained of. The record does not disclose that the question was objected to by the defendants at the time it was proposed for the reason that it did not properly cover the case. It must be held, therefore, that the defendants assented to the submission of the question as drawn by the court, and the only question is whether the affirmative answer of the jury establishes the fact that the defendants were guilty of the trespass complained of. The question reads as follows: “ In case you answer £ yes ’ to the second question, then did the defendants hire, assist, counsel, procure, or consent to the cutting of ties and timber upon plaintiffs premises, or carrying them away?”
The second question referred to in the fourth reads as follows : “ At the time stated in the complaint were there any ties and timber cut upon the plaintiff’s premises ? ” Both questions were answered in the affirmative. It is claimed that the jury might have answered “ yes ” to the fourth question, because they found that the defendants had consented to the cutting and carrying away of plaintiff’s timber, and m&y have at the same time found that they did not hire, assist, counsel, or procure the same to be done. It is undoubtedly true that a person who has knowledge that another is committing a trespass upon his neighbor’s land does not
The learned circuit judge, after reading the question to the jury, said: “ In case you find the defendants or either of them, being engaged in a joint enterprise, hired timber to be cut on the plaintiff’s premises, or assisted, directed, procured, or consented to such trespass being committed, either in cutting or hauling the ties away, then you will answer ‘yes.’ ” “But if you find the defendants made a contract with Noak to furnish him supplies while at work, and agreed to receive or purchase ties and posts of him- at the market price in .Ahnapee, without counseling or directing him where to cut ties, or knowing that he was to cut or carry them from the plaintiff’s land, then you will answer ‘ no ’ to this question.” “ The mere fact that the defendants paid some of the men employed by Noak upon his order, and charged the amount so. paid to him, would not make them responsible for his acts. It is only a mode of paying for the ties.” “ Still you may consider the evidence for the purpose of determining whether the defendants managed, directed, counseled Noak in cutting and hauling the ties, or whether Noak acted as their agent; for if the contract between Noak and the defendants was only a pretense and cover to wrongfully obtain possession of the ties, then the defendants are responsible for Noak’s acts; but if they acted in good faith, as claimed by the defendants, then payment of men would not of itself
The foregoing are all the instructions given the jury upon this question. No part of them was excepted to by the defendants, and no other or further instructions were asked by them upon this point. These instructions, it seems to us, presented the question of the defendants’ liability fairly to the jury, and they have answered thé question in the affirmative. We must hold that they answered it in the light of the instructions given, and that after such instructions they must have understood that the word “ consent,” as used in the question, meant a consent by an active participation in the original trespass in one of the methods pointed out by the judge in his instructions. This finding, considered in the light of the instructions above quoted, is sufficient to fix the trespass upon the defendants. The case of Jewell v. C., St. P. & M. Railway Co., 54 Wis., 610, 617, which is cited for the purpose of sustaining the defendants’ exception to the above question and answer, is not applicable to this case. The objection to the question propounded in that ease was that it submitted two propositions in a disjunctive form, in order to establish negligence on the part of the defendant, one of which propositions, if answered affirmatively, would not tend to prove such negligence; and one affirmative answer to both propositions would not, therefore, establish such negligence. It is not stated in that case that two propositions may not be submitted in the disjunctive form requiring but one affirmative answer, if the jury would be justified in giving an affirmative answer if either proposition taken separately would justify such answer.
In the present case it is not contended but that the jury were justified in answering the question propounded in the affirmative, if either of the propositions contained in the question was supported by the evidence; nor is it denied that such affirmative answer would convict the defendants of the
The view we have taken above upon the competency of the plaintiff’s evidence to establish the boundaries of the plaintiff’s land, disposes of the objections taken to the instructions of the court upon that subject.
By the Court.— The judgment of the circuit court is affirmed.