Orton v. Noonan

19 Wis. 350 | Wis. | 1865

By the Court,

Cole, J.

In our view many of tbe questions so fully discussed by tbe counsel for tbe respondents are not before us on this appeal. Tbe great burden of bis argument was directed to establish tbe proposition that tbe entire strip of land marked upon tbe plat and described in tbe pleadings and evidence as “ reserved by proprietors,” was originally devoted by tbe proprietors for tbe perpetual use and accommodation of tbe owners of tbe river lots for all tbe purposes incident to any manufacturing business that should be carried on upon said lots. And it being assumed that tbe ease showed that tbe respondents own certain river lots adjoining this reserved strip, it was argued that they have tbe clear right and privilege to use tbe premises claimed as a passage way to their paper mill, and that this right or privilege passed as appurtenant to their lots, and became an integral part of tbe estate in them. Tbe difficulty however with this view of tbe case is, that there is no proof before us in respect to tbe respondents’ title, or what their rights were in tbe river lots. Tbe court granted a nonsuit, and tbe respondents were not called upon and did not in fact go into the question of their title. The question is, can the nonsuit be sustained upon the evidence which was before tbe court in respect to the plaintiffs's title, in connection with tbe admissions in tbe answer? It appears to us not.

It was admitted in tbe answer that the title to the whole tract of land embraced in tbe plat of tbe village of Humboldt was in "Wolcott, Dousman and tbe Cottons in June, 1851. Tbe plaintiff bad an undoubted right to avail himself of this admission in the answer. Sexton v. Rhames, 13 Wis., 99. Both parties claim under the same grantors, and it was therefore sufficient for tbe plaintiff to prove tbe derivation of title from tbe common source. This be did do by tbe deed which be introduced in evidence, bearing date November 1st, 1852. And it fully appeared, that the defendants were in the possession of the premises described in tbe complaint, which was a portion of the reserved strip of land. It is true they allege in their answer that they were the owners of certain lots adjacent to this reservation, and that they had the right to use such reservation for all purposes incident to any manufacturing business carried on upon their premises. But while the answer is taken as true that both parties claim from a common source, and that the defendants are in possession of the premises claimed, it cannot be assumed without proof that the defendants are in possession under a good title as against the title made out by the plaintiff. They allege that they hold under a prior conveyance from "Wolcott, Dousman and the Cottons; hut this obviously was matter of defense, to be established by proofs on the trial. The allegations in the answer in respect to the defendants’ title are not admitted to be true, as was assumed in the argument of the counsel for respondents, but are directly controverted and put in issue, as the pleadings now stand. So that this whole question as to whether the original proprietors must be held to have dedicated this reservation to the use and accommodation of persons owning lots on the river adjacent to it, is not before us; since the defendants’ title or relation to the property does not appear.

It was assumed by the counsel on both sides that the deed introduced on the trial by the plaintiff was properly before us. It was not however incorporated in the bill of exceptions, as it should have been; and we have had some doubt whether we should consider it at all in disposing of the case. We certainly should have disregarded it had any objection been taken that it was not properly incorporated in the bill of exceptions. The practice of sending up loose papers and treating them as a part of the bill of exceptions, without stipulations to cure the defect, is becoming quite too common, and cannot be approved by the court even if counsel take no objection to it. It is absolutely essential for a due administration of justice that more care should be exercised in perfecting the record of causes which come before us. These remarks are made, not so much with reference to tbe state of tbe record in tbe case now before us, as to correct a looseness of practice in preparing bills of exceptions wbicb is becoming quite too prevalent among tbe profession. It is necessary to add a further remark, wbicb is, that neither tbe original bill of exceptions, nor a certified copy thereof, is to be found in the record returned by tbe clerk. The counsel on both sides have however entered into a stipulation that tbe bill contained in tbe printed case be taken and considered as the bill of exceptions in the cause, tbe original having been lost or mislaid. We have therefore decided this cause upon the printed bill of exceptions. We shall not disregard such omissions in the future ; and if parties appealing desire us to look into the bill of exceptions, they must see to it that it is properly returned by the clerk with the record. Otherwise the cause will be disposed of as though no bill of exceptions had been settled.

The j udgment of the circuit court is reversed, and a new trial ordered.