Soper v. Barker

36 Wis. 648 | Wis. | 1875

Cole, J.

The counsel for the defendant insist that, to support this action of trespass guare clausum, it was only essential to prove the actual possession of the plaintiff and an illegal entry by the defendant, and that title to land does not necessarily come in question. Consequently it is claimed that the case was within the jurisdiction of a justice, and that the plaintiff was not entitled to costs.

Where the action is founded merely on possession, the question of title not being raised in any way, doubtless all that it is necessary to prove in order to support the action, is an injury to the actual possession. But questions of title and ownership are frequently raised and tried in the action. It is very evident that under the pleadings in this case the question of title might have been involved. For, in addition to the other matters set up in the answer, the defendant denies that the plaintiff had possession of the land on which the acts complained of were committed, or had any right or title thereto. Certainly under tbat averment title might have come in question; and the circuit judge made and signed a certificate that title to real property came in question on the trial. This entitled the plaintiff to costs upon a recovery, under Tay. Stats., 1531, § 54, subd. 1, which provides that costs shall be allowed of course to the plaintiff upon a recovery in an action for the recovery of real property, or where a claim of title to real property arises on the proceedings, or is certified by the court to have come in- question at the trial. Whether, when the court makes the certificate, we can review the evidence for the purpose of determining whether the facts warranted such a certificate, may be a question; but surely we could only do so when the bill of exceptions purports to contain all the testimony. There is no statement in the present bill that it contains all the evidence; and we therefore must presume that title to land did in fact come in question, as certified by the court below. Indeed it appears from the bill of exceptions as it now stands, that the plaintiff introduced the conveyances constituting his chain of title in evidence, doubtless supposing he was bound to do so under the issues made by the answer. This, it seems to us, is all that need be said to dispose of the question whether the plaintiff was entitled to costs.

The answer further stated that the premises mentioned in the complaint were adjacent to land owned by one Mayhew; that a boundary and division line between the lands of plaintiff and Mayhew was mutually established many years prior to the commission of the trespasses complained of; that each owner had occupied and cultivated up to this boundary line by mutual consent; and that the defendant went and cut the grass and occupied the land under Mayhew up to that line, without objection. Hence it is said that there was an implied mutual license to cut and carry away the grass and crops in controversy ; and that no action of trespass could be maintained until the plaintiff had revoked this license. And it is insisted that the court erred in not submitting this question of license to the jury. But as we understand the case, that question was submitted with proper instructions. The jury were expressly told that the plaintiff, if he recovered at all, could only recover for grass cut and carried away from his land which grew east and south of this division or boundary line marked by the plaintiff and Mayhew. This was directing the jury that there was an implied license to each owner to occupy to that line until some further act or notice. But it could hardly be claimed that the action of the parties in respect to the division line amounted, to a license to either to cross over the line and cut grass on the other side of it, which the jury must have found that the defendant did do, under the charge of the court.

As we see no material error in the record, the judgment of the circuit court must be afirmed.

By the Court. — Judgment affirmed.