72 Wis. 220 | Wis. | 1888
The only facts of this case necessary to be stated to make the only question involved and the decision intelligible are as follows: John M. Ritter and John H. Horton owned a mill pond or lake near the city of Palmyra, and on December 6, 1881, by a written agreement, conveyed to one John.Atkins the right, for the term of five years, to cut ice from said pond and store it in ice-houses situated near the same. At the same date said Atkins obtained from one Reuben Rockway and wife a lease of fifteen acres of land situated near the margin of said pond, for the term of five years, for the construction of ice-houses thereon in which to store the ice harvested from said pond, with an agreement therein that the said Atkins might purchase said land at the end of the term for the consideration of $500. Between the 18th day of January and the 1st day of March, 1882, the defendant had advanced and loaned to said Atkins the sum of $3,000 to be used in constructing ice-houses on said premises and procuring all the necessary tools, machine^1, and appliances for the ice business, and Atkins gave him his note therefor, dated March 1, 1882, to become due October 1, 1882, and at the same time executed a chattel mortgage upon said ice-houses and all the property used in said business, to secure the
In the foreclosure action Atkins, the plaintiff, and others
The point is made by the learned counsel of the respondent that the said ice was a part of the realty of said pond, but that question can hardly be material in a case like this, where the ice was rightfully severed from the freehold and removed to said ice-houses on other land. There is nothing in this case to make the plaintiff’s right to the ice which he removed by the consent and agreement of Atkins any less than would have been the right of Atkins to the ice had he removed it to the ice-house for his own benefit. If he had the right in the season of 1881 and 1885 to cut ice from the pond, and store it in the ice-houses, and to own it as his own property, then it follows that he could give, sell, or assign such right to the plaintiff.
The contention of the learned counsel is, further, that the ice was mortgaged to the defendant, and passed to him as it might form on said pond, from year to year, and to become liable to be sold under said mortgages and assignment, and that he purchased it with all other of the mortgaged premises; and, again, that if the ice was personal property in the ice-house, if it remained there until the defendant took possession of the property, the plaintiff lost his right to it. These questions will all be disposed of by the relations of mortgagor and mortgagee in this state. It is very clear that the defendant was a mortgagee, and Atkins the mortgagor in possession, up to the time of the foreclosure sale and its confirmation. The authorities cited in respect
In any view of the case, and whether the ice crop ought to be treated in analogy to emblements or growing crops or not, one thing is certain: that the plaintiff had the right, through Atkins, the mortgagor in possession, to cut and remove this ice from the pond. It was no trespass or wrong. The defendant, at no stage of his security rights, up to the time he became entitled to the fee and possession
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.