145 Wis. 528 | Wis. | 1911
That tbe plaintiff at tbe time of tbe cutting was not in tbe actual possession of tbe land from wbicb tbe timber sued for was cut, is too plain to admit of controversy. Mygatt v. Coe, 141 N. Y. 456, 42 N. E. 17; Rice v. Frayser, 24 Fed. 460; Staton v. Mullis, 92 N. C. 623; Travers v. McElvain, 181 Ill. 382, 387, 55 N. E. 135; Webber v. Clarke, 74 Cal. 11, 15, 15 Pac. 431; Omaha & F. L. & T. Co. v. Parker, 33 Neb. 775, 51 N. W. 139; Gildehaus v. Whiting, 39 Kan. 706, 713, 18 Pac. 916. Tbe action of trespass quare clausum can be maintained only by one in tbe actual or constructive possession of tbe premises on wbicb tbe trespass is committed. Gunsolus v. Lormer, 54 Wis. 630, 634, 12 N. W. 62.
That a cause of action for trespass for injury to tbe pos-sessory right may be maintained by a person in tbe actual possession of land against another who bolds no paramount right or title, or against a mere intruder, by proving such possession, unlawful entry, and damage, is well established by tbe decided cases in this court. Hungerford v. Redford, 29 Wis. 345, 348; McNarra v. C. & N. W. R. Co. 41 Wis. 69, 74; Gerhardt v. Swaty, 57 Wis. 24, 28, 14 N. W. 851; Gunsolus v. Lormer, supra.
It is also well settled that a plaintiff in an action quare clausum who is not in tbe actual possession of tbe land upon wbicb tbe trespass is committed, and who is therefore obliged to rely on constructive possession, must establish that possession by .showing that be has good title. Stated in another way, tbe constructive possession follows tbe title. In Hungerford v. Bedford, supra, tbe court, after saying that actual possession is sufficient unless tbe defendant proves an adverse title of a higher character than a possessory one, continues:
“If the plaintiff is not tbe real owner of tbe land, and tbe defendants shall be compelled to pay tbe judgment wbicb be*531 [tbe plaintiff] recovered against them in tbe circuit court, wbat rule of law will prevent sucb owner from bringing an action against them for tbe same logs and recovering therein % . . . Tbe fact that a recovery by tbe bolder of a merely color-able title is no bar to a recovery by tbe real owner, demonstrates that none but tbe real owner can recover.”
Tbe action was one of replevin to recover logs wrongfully cut on unoccupied lands claimed by tbe plaintiff, and recovery was denied because be was unable to prove perfect title to tbe lands.
McNarra v. C. & N. W. R. Co., supra, was an action to recover damages occasioned by a fire negligently set by tbe defendant. It was held that tbe title necessary to be proved in order to maintain tbe action was tbe same as in an action of trespass quare clausum fregit or in replevin for timber cut and removed, and that “in either case, if tbe lands upon which tbe trespass was committed ware vacant and unoccupied, tbe plaintiff must prove bis title thereto, or be cannot recover.”
In Gunsolus v. Lormer, supra, it was said: “That constructive possession which, in tbe absence of any actual possession, will warrant tbe bringing of this action [trespass quare clausum], is that of tbe owner of tbe premises alone.”
In Stephenson v. Wilson, 37 Wis. 482, 488, it was held that if tbe plaintiff in an action of trespass quare clausum cannot show actual possession, but is obliged to rely on bis legal title, be must show a valid title.
In Wadleigh v. Marathon Co. Bank, 58 Wis. 546, 17 N. W. 314, tbe action was brought to recover tbe value of saw logs cut upon lands owned by tbe plaintiff and converted by tbe defendant to its use. Judgment was demanded for $1,000, being tbe value of tbe logs, and for tbe sum of $1,000 for tbe damage to tbe land caused by tbe cutting of tbe timber. It was held that tbe action was in tbe nature of a trespass and was also brought to recover damages for permanent injury to tbe freehold. Tbe court said:
“Were no damages claimed other than for tbe mere invasion of plaintiff’s possession, tbe lands being wild and vacant,*532 it would be incumbent on bim to prove bis title thereto in order to show a constructive possession in himself. The cause of action being permanent injury to the land, to entitle the plaintiff to recover he must establish his title. The reason of this is, if the plaintiff is not the owner of the land, a recovery by him would be no bar to an action for such injury brought against the trespasser by the real owner.”
Paige v. Kolman, 93 Wis. 435, 436, 67 N. W. 700, was an action for trespass for cutting timber. The court said: “The land upon which the trespass was committed was unoccupied timber land. Hence the plaintiff must prove valid title in order to recover.”
In some of the cases cited the defendants were mere naked trespassers who acted without any color of right. In all of them the plaintiffs showed or attempted to show some color of title. It seems, therefore, to be quite well established by our decisions that constructive possession follows the title, and that the trespasser on unoccupied lands can be made to respond in damages but once, and then to the owner. The decisions elsewhere to the same effect are numerous: Shipman v. Baxter, 21 Ala. 456; Smith v. Yell, 8 Ark. (3 Eng.) 470; Jenkins v. Lykes, 19 Fla. 148; Yahoola River & C. C. H. H. M. Co. v. Irby, 40 Ga. 479; Atlantic & G. R. Co. v. Fuller, 48 Ga. 423; Rockwell v. Jones, 21 Ill. 279; Gauche v. Mayer, 27 Ill. 134; Broker v. Scobey, 56 Ind. 588; Aikin v. Buck, 1 Wend. 466; Roe v. Wilbur, 57 Pa. St. 406; Snider v. Myers, 3 W. Va. 195; Church v. Meeker, 34 Conn. 421; Edwards v. Noyes, 65 N. Y. 125.
It is now pertinent to consider what interest the plaintiff had acquired in the lands at the time of the trespass. It has been held by this court and by the federal supreme court that an entryman secures no title to the land he desires to homestead until he has complied with the law and has earned his patent. Empey v. Plugert, 64 Wis. 603, 607, 608, 25 N. W. 560; Whitcomb v. Provost, 102 Wis. 278, 282, 283, 78 N.
There was a right of action in some one to recover damages for this trespass as soon as it was committed. It is clear that such a right of action was vested in the United States as owner of the lands. It also seems clear that under the facts of this case there was but a single cause of action, and that the plaintiff had no title that carried the constructive possession so as to enable him to maintain the action. If there was but a single cause of action, that was extinguished by the settlement made with the only party who was entitled to make it.
The plaintiff, however, maintains that the doctrine of relation is applicable to the facts of the case, and that the'patent should be held to relate back and convey title as of the date of the homestead filing, and a number of cases are cited in support of such claim.
In Peyton v. Desmond, 129 Fed. 1, it is held that a homesteader after be secures a patent may sue and recover for a trespass committed before final proofs were made, tbe patent relating back to tbe date of entry. In tbis case it is beld that the homesteader is entitled to receive tbe land in tbe condition in wbicb it was on tbe date be made bis entry. When tbe patent was issued, however, tbe timber was gone and a right of action only remained to recover its value. Equitably, as between tbe United States and tbe homesteader, that cause of action became tbe property of tbe latter as soon as be complied with tbe law, and it was beld that tbe patent carried with it tbe right of action for tbe trespass. No attempt bad been made by tbe United States to enforce the collection of tbe trespass. This case, wbicb is strongly relied on by tbe respondent, is authority to tbe proposition that tbe moneys collected by tbe United States from tbe defendant equitably
The ease of Carner v. C., St. P., M. & O. R. Co. 43 Minn. 375, 45 N. W. 713, relied on by the appellant, is distinguishable from the case at bar in two respects. In the first place, the plaintiff was in the actual possession of the land under his timber entry when it was damaged by the fire negligently set by the defendant, and, secondly, the United States asserted no claim against the defendant for the damage resulting from the fire.
The case of Hastay v. Bonness, 84 Minn. 120, 86 N. W. 896, is also relied upon by the appellant. This action was brought by the homesteader after he had secured his patent, and the United States had never attempted to collect for the trespass, and it was held that the patent related back to the date of entry. This case was very similar in its facts to Peyton v. Desmond, supra.
Our attention has not been called to any case which holds that the United States was not entitled to collect for the trespass committed by the defendant at the time which it did collect for the same, and the law seems to be well settled the other way. Neither has our attention been called to any case where the homesteader who has not yet entered into possession of his homestead can maintain an action for trespass committed before he has taken possession and while his right to the land remains inchoate. This action is brought under
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.
