Pacquette v. Pickness

19 Wis. 219 | Wis. | 1865

By the Court,

DowNER, J.

The errors assigned in this case are: 1st. That the “ Improvement Act,” so called, is unconstitutional. 2d. That the circuit court excluded evidence tending to show what the value of the lands recovered by the plaintiffs in error in the ejectment suit was and would have been without the improvements made thereon by the defendant in error, and what was their value with the improvements. 3d. That the circuit court refused to permit the plaintiffs in error, defendants below, to amend their answer, so as to set up as a counter-claim the use of the premises- after the recovery in the action of ejectment.

We are of opinion that the “Improvement Act,” so called, is constitutional. It is based upon the broad principles of equity, and, if properly administered, will give to each party his rights. Similar acts have been in force in many of the states for more than half a century, and have been so uniformly held constitutional that we consider ourselves hound by the great weight of authority in their favor. The following are some of the cases in which such laws have been held constitutional : Armstrong v. Jackson, 1 Blackf., 374; Ross v. Irving, 14 Ill., 171; Jones v. Carter, 12 Mass., 314; Kent v. McMahon, 5 Ohio, 79 ; Fowler v. Halbert, 4 Bibb, 52 ; Davis v. Powell, 13 Ohio, 308 ; Lamore v. Winter, 13 Ala., 31; Bright v. Boyd, 2 Story, 607 ; Scott v. Mather, 14 Texas, 235.

The second point presents a question of some difficulty. The statutes of many of the states provide that the same jury which assesses the value of the improvements, hall also assess the damages to the lands from waste and cultivation, and that the latter shall he offset against the former. Has our statute made any provision as to waste, or is the party left to his common law remedy? Chap. 141, sec. 13, R. S., provid.es “ that the plaintiff in any action for the recovery of real property, or of the possession, shall also be entitled in the same action to recover damages for the rents and profits of the premises recovered, during the time the same are unlawfully withheld.” And by sec. 15, “the same jury shall assess the plaintiff’s damages for the unlawful withholding of the premises, including the mesne profits received by the defendant, in cases where the plaintiff is entitled to recover such mesne profits.” What damages or mesne profits are to be recovered under these provisions? Are they the same as in actions of trespass for mesne profits at common law ? At common law, in such actions, the plaintiff could recover not only the rents and profits but for all damages done to the premises, and in some instances smart money. It may be true that the defendant in ejectment has cut much valuable timber on the land recovered, as the plaintiffs in error offered to prove, and in other ways injured it much; that his improvements are many of them really what would he waste at common law ; yet if the plaintiff in ejectment had a right in that action to recover for all these trespasses and damages, the presumption is that he did recover for them in that action, or if not, he is barred from so doing, and cannot recover them in this, or be allowed for them as an offset to or in reduction of the value of the improvements. But if he had not the right in the action of ejectment to recover those damages, and was confined to the rents and profits of the premises, then we see no reason why trespasses and acts done to the lands making them of less value, should not be taken into account in this action. In actions for trespass for mesne profits at common law, the plaintiff cannot recover for injuries done to the premises by the defendant, unless they are specially alleged. Section 4 of the chapter aforesaid prescribes the substance of the complaint in real actions, and seems to us not to contemplate any allegations of special damages. We think, therefore, the damages recoverable inactions for the recovery of real estate are confined to the rents and profits. Similar statutes have received the same construction by other courts. Walker v. Hitchcock, 19 Vt., 637; Leland v. Tousey, 6 Hill, 328. These cases also are to the effect that a separate action can be maintained for injuries to the real estate.

The words “ valuable and permanent improvements,” as used in the act under the provisions of which the plaintiff below recovered, must have reference to the purposes for which the lands are or may. be used.' If the lands are farming lands, they must be improvements which enhance the value of the land for farming purposes — which enhance the value of the land as a whole. If in making the improvements valuable timber is destroyed, and the value of the lands thus made less, this should be taken into account in estimating the value of the improvements; especially when, as in this case, a part of the improvements for which the plaintiff below sought to recover, are claimed to have been made in clearing these very timbered lands. If the cutting of this timber and clearing the lands was an injury rather than a benefit to the premises, it seems to us the plaintiffs in error should have been permitted to prove it.

We are of opinion that testimony should be admitted showing the value of the improvements, the value of the land without the improvements, the value of the land with the improvements, and also that all facts may be admitted as evidence tending to prove what the value of the land would have been if the improvements had never been made; all to the end that the plaintiff may recover for his improvements the amount they have added to the value of the land, and nothing more. This is equity, and according to the spirit and letter of the statute.

As to the third point, we are of opinion that the plaintiffs in error have a right to recover for the use of the premises exclusive of the improvements, from the time of the rendition of the judgment in ejectment to the time of the recovery by the defendant in error for his improvements, and that the court below ought, on proper terms, to permit the answer to be amended so as to set up this claim.

The judgment of the circuit court is reversed, with costs, and a venire de novo awarded.