108 Wis. 198 | Wis. | 1900
Two questions are presented for consideration: (1) Was the plaintiffs’ occupation of the land sufficient to disengage the running of the bar of the statute in favor of the tax deed claimants ? (2) Are the findings in regard to the value and amount of timber taken supported by the evidence ?
1. At the time the tax deeds under which the defendants claim were recorded the lands were vacant and unoccupied. The plaintiffs held the original title. The lands were supposed to be what are called “ iron lands.” Early in 1887
Upon the question of the quantity of the timber found, a much more serious difficulty arises. The plaintiffs’ case is based entirely upon the testimony of.the witnesses Johnson and Otness, who went to the land together some time after the timber was cut, and made a trespass scale. They made a measurement of thirty or forty trees, and averaged the rest. They made no allowance for the jump of the tree, or for rot or defects, except in a few cases where the stump indicated the tree was rotten. Generally speaking, their scale was a full scale of the entire timber cut” as if it was sound, straight, and entirely merchantable. The court adopted such scale as the basis of plaintiffs’ recovery, and in the Midlothian, Case gave the plaintiff judgment for 1,181,216 feet at §2.25 per thousand, and in the other case for 50,000 feet at the same price. The plaintiffs’ scale shows 3,191 logs in all. On the basis of the scale allowed by the court, this would make the logs run about 2.59 logs to the thousand feet, or 386 feet to the log. Opposed to this conclusion we have an estimate of the timber made by the witness Welcome, who fixed the amount of timber on the land at 950,000. We have the testimony of all the witnesses that the timber was very rotten and defective. The plaintiffs’ scaler Johnson testifies that the timber was punky and contained “ring rot, center rot, and stump rot;” that
The testimony as to the amount of timber cut on the lands of the Cumberland Company is very meager and unsatisfactory. One witness says the amount was about 50,000 feet. No basis is furnished by the testimony that will permit us to disturb the court’s finding in this case.
Our conclusion is that the evidence will not permit a finding of a greater amount than 664,890 feet on the entire tract of land, 50,000 feet of which were cut on the lands of the
By the Count.— In the case of the Midlothian Iron Mining Company the judgment is modified, with costs to appellants, to stand for the sum of $1,383.50 and interest from May 1,1897. In the Cumberland Iron Mining Company case the-judgment is affirmed.