Peshtigo Lumber Co. v. Ellis, 122 Wis. 433

Peshtigo Lumber Co. v. Ellis

122 Wis. 433 | Wis. | 1904

WiNSLOW, J.

This is an action in equity to obtain a judgment allowing the plaintiff to cut and remove timber from the lands in question after the time limited by its contract, on the ;ground that the defendants Gottschalk and Ellis by their acts wrongfully prevented the plaintiff from cutting and removing the same during the contract period, and should not be allowed to take advantage of their own wrong.

The contract set forth in the complaint was not executed under seal, and hence conveyed no legal title to the standing timber, because it is part of the real estate; but it sufficed to •create an equitable right in the timber which a court of equity would protect and enforce in a proper case. This is obvious and is not questioned. That right so created was, in effect, the equitable ownership of all the timber which the plaintiff should cut and remove prior to April 1, 1903. Strasson v. Montgomery, 32 Wis. 52; Golden v. Glock, 57 Wis. 118, 15 N. W. 12.

While the equitable ownership expired on the date named, it does not follow that a court of equity might not, under a proper showing of fact, grant relief to the plaintiff and allow *438it to cut and remove timber after that date. Probably, if it appeared that the defendants, by physical force, prevented the cutting of the timber within the contract time, or procured an injunction which operated to the same effect, a court of equity would not allow them to say to the plaintiff: “You should have removed your timber during the contract time.” The principle is that “he who prevents a thing being done shall not avail himself of the nonperformance he has occasioned.” Broom’s Legal Maxims (8th Am. ed.) 281; Sanders v. Clark, 22 Iowa, 275 ; Monroe v. Bowen, 26 Mich. 523.

But it is very clear that, in order to justify relief on this ground, it must appear that the defendant by physical force, or. by acts legally equivalent to such force, actually prevented the plaintiff from exercising its right; and we think it is equally clear that the present complaint does not show such prevention. It is true that it is alleged that in November, 1002, the defendant Qoitschallc notified the plaintiff that the land •was his, and that he should hold it responsible for the highest market value of any timber it might cut thereon. This notification, however, cannot be held to amount to prevention. It was a mere claim of title, and a notification that, if the plaintiff cut timber, it would cut the same at the risk of an action for damages. This, however, is a warning frequently given, and rather commendable than otherwise, because it notifies the adverse party of what may be expected to ensue from its acts. People frequently are obliged to choose between two courses of conduct, knowing that the choice of one course will result in a lawsuit and that the choice of the other may forfeit valuable rights; but we have not supposed that this knowledge would relieve from the necessity of making a choice, or excuse one for sleeping on his contract rights.

When a man proceeds to convert to his0own use property which he knows is claimed by another, he also knows that he is liable to be sued for his act; but it cannot be said that he can, because of such mere claim, at once desist from further *439action, and insist that be was prevented from exercising bis rights of ownership. This is substantially the present situation. The defendant’s threat of suit was a. mere statement of that which the plaintiff, as soon as a claim of ownership was made, knew was liable to occur. There is no claim that the plaintiff ever believed that the defendant Gottschalk had a good title or was an innocent purchaser. The statement simply is that the plaintiff desisted from action because of the threat of suit. Had it appeared that the defendant Gott-schalh falsely claimed to own the property as an innocent purchaser, and the plaintiff believed said claim, and in reliance on such belief desisted from cutting timber, another question would be presented, and one on which we intimate no opinion.

The time for cutting the timber had not quite expired when the complaint was served, but it had expired before the demurrer was served. It'being apparent, therefore, that a judgment establishing the equitable title to the timber which the plaintiff had at the time the action was commenced would be of no value because that title had been divested before judgment could be rendered, the general demurrer was properly sustained. A court will not undertake labor which, when completed, is in vain. Rust v. Conrad, 47 Mich. 449, 11 N. W. 265.

By the Court. — Orders reversed, and action remanded with directions to sustain the demurrers of the appellants.