Martin v. Clark

111 Wis. 493 | Wis. | 1901

Ma-rsttat.t., J.

It is evident that the court considered the stipulation, that Dumas purchased the right to cut the timber in question without notice of the prior grant to Miller, as meaning that Dumas had no actual notice of such grant; that it was not intended by the parties to the stipulation to take out of the case the question of whether the purchase was made with constructive notice of such grant by reason of the record of the instrument under which Miller claimed and the law of Minnesota validating it. That construction seems reasonable, inasmuch as the parties were particular to state, as part of their stipulation, facts as to the record. Unless it was intended by defendant’s counsel to rely on constructive notice of the Miller conveyance, basing such reliance on the law of the state of Minnesota validating the record thereof, the facts as to the record itself were entirely immaterial: there was no necessity whatever for bringing them to the attention of the court.

It is conceded that the case is governed by the law of the ■state of Minnesota, but appellant insists that it was error to grant the new trial to enable counsel for respondent to put in evidence and have considered the decision of the supreme court of such state in Pine Co. v. Tozer, 56 Minn. 288, because such decision would not change the result of which defendant complained. That depends upon whether the court decided in such case that an instrument similar to the one in question is a conveyance of an interest in land and not a mere revocable license. A careful reading of the opinion satisfies us that the court there had under consideration a contract substantially like the one in question and,held that the grantee therein was not a mere licensee; that he was a conditional owner of the standing timber; that he obtained by his grant the absolute right to take such tinlber from the land and to own the logs made therefrom on condition that the cutting and removal of the timber should take place within the time named in the grant. The court called attention to these features of-the grant: The grantee obtained the right for a long period of time to cut and remove the timber. He obtained such possession of the land as was necessary to enjoy the principal thing granted. He paid a large sum of money in advance of the time when it was contemplated by the parties to the grant that the right to cut the timber should be exercised. He paid for and was granted things annexed to the freehold, with a right to the soil for the purpose of the growth of the granted things till they were severed from the soil. Under such circumstances the court said the grantees' “ had undoubtedly an interest which would have been subject to seizure and sale upon execution, not as personalty, but as real estate. Their interest was not that of a licensee,— simply to go upon and occupy the land and cut and remove timber until the license was revoked; but there was a valid grant of the right and privilege of occupying the land and cutting and removing the timber, a part of the realty, which, when severed, would become personalty. They had acquired rights which could not be' taken away from them. If what they held under these contracts was not an interest or estate in real property it is difficult to conceive an interest or estate, less than a fee, which would be.” When we consider the significant words of the agreement which the court there had .under consideration, and those in the grant to Miller, the applicability of the language quoted to the facts of this case is clear. Here the words of the grant are: “The right, privilege, and permission to enter upon, cut, and remove previous to May first, 1899 [a period of about nineteen years], and when so cut and removed to own, control, and possess all the pine timber fit for saw logs growing upon,” etc. There the language of the agreement was: “ The right, privilege, and permission to' enter upon said lands and cut and remove said timber at any time previous to the first day of May, 1899,” a period of about eighteen years, “ all of the pine timber, fit for merchantable saw logs, standing, growing, or being upon,” etc., “ and when so cut and removed . . . to control, own, and possess said timber.” The granting clause in each instrument is followed by language to the effect that the timber when cut from the land should be the property of the grantee. The effect of the decision clearly is that in Minnesota such a contract as the one under consideration is not a mere naked license which can be.revoked at pleasure before its execution, but is a license coupled with an interest in the thing-, the real estate,— in effect, a conditional sale of standing timber. That is contrary to what the trial court understood the law of Minnesota to be when the judgment was rendered, and contrary, rather than in addition, to the evidence that was then before the court. It was, therefore, rightly decided on the motion that, had the evidence as to the true state of the law of Minnesota been produced upon the trial, the result might or would have been different.

It is strongly urged by counsel for appellant that no sufficient excuse was given upon the motion to vacate the judgment for not bringing the newly discovered evidence to the attention of the court upon the trial. The decision of the court below upon that point cannot be disturbed except for clear abuse of judicial discretion. We do not deem it necessary to discuss at length the affidavits presented to excuse the failure to discover the evidence in time for the trial. To our minds they are at least sufficient to preclude us from holding that there was an abuse of judicial power in treating them as satisfactorily excusing the neglect of counsel and warranting the relief granted.

By the Court.— The order appealed from is affirmed.