Haseltine v. Mosher

51 Wis. 443 | Wis. | 1881

Cassoday, J.

Section 32, ch. 22, Laws of 1859, now modified and embodied in section 1187, R. S., provided, among other things, that “no action shall be maintained by the grantee named . . . unless such grantee, or those claiming under him, shall have been in the actual and continual possession of said lands, claiming title under such deed, for three years previous to the expiration of five years next after the date of such deed.”

The findings of the jury clearly show that the plaintiffs were not in the actual or continued possession of the south forty during the three years mentioned, but, on the contrary, that such possession was interrupted; that the defendants entered upon the same in November, 1871, and began and continued cutting roads, building sledways and cutting and hauling the pine off of the land, and continued carrying on such work on said land until April 1, 1872; and that the same was renewed during the winter of 1872-3. This is the only kind of actual possession that such lands could conveniently be subjected to.

The method and purpose of the entry, the character and duration of the occupancy and possession of the original owner under the statutes, must necessarily differ with the character and quality of the land, soil, mineral, water, timber, or other growth in, about or upon the land; but the statute, nevertheless, covers all cases which come within its provisions. We are to remember that every tax-title claimant is, for a comparatively trifling consideration paid, seeking, under the authority of the statute and in derogation of the common law, to divest the title of the real owner and transfer it to himself, and hence that he must strictly pursue the statute, or he will fail in his effort. Potts v. Cooley, ante, p. 353.

This strictness of construction is especially applicable when the tax-title claimant is seeking to divest the title of the real owner by virtue of a deed confessedly void, on the ground that such real owner is barred by the statute from questioning his constructive possession under such void deed. In such case he invokes the statutory bar in order to build up an exclusive right to land, based upon a deed void for non-compliance with the statute. A strict construction of sucha statute, therefore, is in harmony with the ends of justice.

With the right to acquire the land only by a strict compliance with the letter of the statute, he should not object to the interruption of his constructive possession by the physical occupancy of the real and equitable owner, in any way which clearly indicates an assertion of title to the land. This question has been so often determined by this court, that it is unnecessary to dwell upon it or to cite authorities.

The jury found that 17,000 feet of the lumber were cut by the defendants on the north forty, belonging to the plaintiffs. There is no claim that any affidavit of mistake was served by the defendants within ten days after the service of the complaint, or at any time, as required by chapter 263, Laws of 1873 (now section 4269, R. ¡3.). The plaintiffs, therefore, were, under that statute, entitled to “recover as damages the highest market value of such logs, timber or lumber, in whatsoever place, shape or condition, manufactured or unmanufac-tured, the same ” were “ between the time of such cutting and the time of the trial of the action, and while it remained in the possession of the ” defendants. The meaning of this statute is plain, and this court must follow it, however harshly it may affect the individual. Webber v. Quaw, 46 Wis., 118; Ingram v. Rankin, 47 Wis., 421; Wright v. Bolles W. W. Co., 50 Wis., 167.

It is true, the statute is penal; but there is no moré reason for holding that the “ highest market value ” mentioned in it shall be taken at the mills on the Eau Claire, than at any other place, nor that such “market value ” is confined to the “ logs,” and not to the “ lumber ” manufactured therefrom, than to claim that it should be confined to the trees on the land at the time of cutting. The plain meaning of the statute is, that however much the “logs, timber or lumber,” so “ wrongfully cut,” may have been increased in value by the wrongdoer by changing their shape or condition, or manufacturing them into other articles, or transporting them to distant markets, yet such increase, as well as the original value, shall all enure to the benefit of the real owner. The amount here involved is small, but the statute is equally unbending. This was virtually conceded by the counsel for the respondents in the court below, and they there sought to obviate it by consenting to allow the verdict to be set aside, and a new trial had upon the conditions stated. Rut the appellants had the privilege of standing upon their legal rights, and, with their view of the law upon the other question, it was very proper for them to do so. -

Rule Till of this court requires the appellant to make and print a case, consisting of a sufficient statement of the return of the court below, numbered throughout by folios on the outer margin of the page, and provides that no costs shall be taxed for printing any case failing to comply with this rule, or so defective as to require reference to the manuscript return. The objection here made to the printed case is, that it is altogether too voluminous. It is an objection which might, with propriety, be made far more frequently than it is; and we therefore take this occasion to refer to a general tendency to go beyond the spirit of the rules in printing cases, and the “ succinct statement of so much of the record as is essential to the questions discussed,” in the briefs. Where the case is tried by a jury, and there is no question involving the weight and sufficiency of evidence, there is no necessity for printing it m ex-tenso. In such cases, a brief statement that there was or was not evidence tending to prove or disprove the several facts in issue, is all that is essential to determine whether the law has or has not been properly applied. Such statement in such cases is a “sufficient statement” within the meaning of the rule. The printed case should only present so much of the record as is essential to fully understand all the questions involved. The habit of some attorneys, in printing not only all the testimony but the contents of all the papers in the case, is unnecessarily expensive to parties, besides being unnecessarily burdensome to the court. We apprehend it frequently occurs through a misapprehension of the rules. With excessievly voluminous records, it frequently takes as much time to determine what portion has not, as to determine what portion has, an application to the points involved. In some cases the “statement of so much of the record as is essential to the questions discussed,” in the briefs, instead of being “a succinct statement,” as required by rule IX, is a reprint of a large portion of an excessively voluminous printed case. Here the briefs are not objectionable, but the case is subject to the criticism of the present chief justice in Southmayd v. Ins. Co., 47 Wis., 522. In taxing the costs of this court, therefore, the court will only allow for fifty pages of the printed case.

By the Court.- — -The judgment of the circuit court is reversed, and the cause is remanded for a new trial.