76 Wis. 582 | Wis. | 1890
This is an action to recover damages for cutting and carrying away pine logs from the lands of the respondent. Upon the trial of the action in the circuit court the plaintiff recovered for 74,600 feet of pine logs marked L115, called “L two notches straight S.,” and also marked W H L, of the value of $7 per M, amounting to $522.20. Upon the trial, objections were taken by the de
It is not contended on this appeal but that there was evidence in the case tending to show that the defendant Polar had cut and hauled from the plaintiff’s lands, and delivered to the defendant Lord a quantity of pine logs, and that such logs were marked with the mark of the defendant, LI 15 and W H L, as contended for by the plaintiff, and that the defendant Lord took possession of said logs and caused them •to be driven down the river to the booms in the vicinity of Oshkosh. The evidence also shows that the defendant Polar was employed by the defendant Lord to cut, haul, .and bank logs from his {Lord's) land in sections 13 and 11, township 33, range 12 east, being the same sections in which the plaintiff owned certain lands, and from which the defendant Polar cut some of the logs marked with the •defendant Lord's mark, and which were mixed with the logs cut on defendant Lord's land, and delivered to Lord by Polar, and which were taken possession of by the defendant Lord, and run down the river to the booms near ■Oshkosh. There was also evidence tending to show that •the defendant Lord directed Polar to cut the logs and •timber on at least two forty-acre tracts owned by the plaintiff, and from which the defendant cut a part of the logs •delivered to defendant Lord under his contract.
The contention of the learned counsel for the appellant is, first, that improper evidence wms admitted on the part of the plaintiff relating to other logs cut on the plaintiff’s land, or on some part of it, to recover which the plaintiff made no claim in this action. After carefully reading the •evidence, we think there was no error in this respect which •could have injured the defendants. In this action the ■plaintiff only sought to recover for logs cut on his land .and which were marked LJ55 and W H L; and, in instructing the jury, they were told by the judge that the plaint
The plaintiff’s witnesses, Allen and Einnucane, testified that there had been cut from the plaintiff’s lands, in sections 13 and 14, 90,643 feet of pine logs during the season that defendant Polar was logging for the defendant Lord ' on and in the vicinity of the lands of plaintiff in said sections; and Polar says no other person was logging in that vicinity that season, and, if any logs were cut on plaintiff’s lands that season, he cut them. Polar also testified that all the logs he cut on section 13 that season were marked LI 15 and WHL; that the logs marked A X K I I were cut onE. -| N. E. £ of section 24, and S. W. ¿ of N. E. J of section 14, and the logs marked A X K I were cut on section 12. The S. W. ¿ of N. E. j: section 14, was plaintiff’s land. Polar also testified that there was about 50,000 feet of the logs marked A X K I cut on section 12, and about 25,000 marked A X K I I cut on sections 24 and 14. Plaintiff testified that 10,800 feet of the logs marked AX K I I were not cut from his lands in section 14; and this is undoubtedly the truth, as these 10,800 feet were of a much better quality of logs than were cut from his lands in section 14. It will be seen that the evidence as to the quantity of these marks of logs tended to show how many logs had been cut from plaintiff’s land in section 13, and which were marked LI 15 and WHL Plaintiff’s witnesses testified that all that were cut on his lands in sections 13 and 14 was 90,643. The defendant Polar says all logs cut on section 13 were marked LH5 and WHL, and that the logs cut on sections 24 and 14, on lands not owned by the defendant Lord, were marked A X K I I, and that there were of these logs only about 25,000 feet. The plaintiff testifies that 10,800 feet of the logs with this mark
Second. It is urged by the counsel for the appellant that the court erred in instructing the jury that the evidence in the case tended to show that the defendants had cut and taken away from 'the plaintiff’s land 74,600 feet of pine logs. Erom the statement of the evidence above made, we think the learned judge was certainly right in giving that instruction, as well as the instruction that there was evidence'tending to show that such logs were worth $9 per 1,000 at the time and place when and where they were re-plevied by the plaintiff. That there was no mistake made as to the quantity of logs cut from the plaintiff’s lands in section 13 is made more probable from the fact that the defendants introduced several witnesses who had examined the plaintiff’s lands' in said section 13, and testified as to the character and quality of timber which was on said lands, and which had been taken therefrom, but none of these witnesses were interrogated as to the quantity of logs which had been cut and removed from said lands during the season mentioned.
It is also alleged as error that the learned circuit judge instructed the jury that, if they found for the plaintiff, the defendant Lord was liable to the same extent as the defendant Polar. That, under the evidence in the case, the defendant Polar was liable to the plaintiff in damages as prescribed by sec. 4269, E. S., is not disputed. That Polar wrongfully cut .the logs upon the plaintiff’s lands cannot well be controverted, and it seems to us equally clear that the defendant Lord, who hired the defendant Polar to cut the logs, must be equally liable. The logs were cut by Polar as
We find no errors in the record which could prejudice the appellant.
By the Court.— The judgment of the circuit court is affirmed.