17 Wis. 107 | Wis. | 1863
By the Court,
This action was brought by the state against the defendants for cutting timber from school lands. It was conceded that the defendants had purchased the lands from the state, taken certificates in due form, paid all sums required at the time of -the purchase and all that became payable thereafter according to the terms of the contracts, being thus in no default, and also that they were in possession. Upon these facts the court found that the state was entitled to recover the full value of the timber cut, there being however no evidence to show what was the value of the lands after the timber was cut, or from which the court could form any conclusion whether they were still a perfect security for the amount due the state or not.
A motion was made for a new trial on the ground that the finding was against the evidence, which was overruled and an exception taken. And this fairly presents the question whether the finding as to the amount of damages can be sustained.
While we think the state may maintain an action against a purchaser in possession for cutting timber which he is prohibited by the statute from cutting, yet it does not follow that it 'may recover as damages, in every instance, the full value of the timber cut. To determine this question it is necessary to consider the nature of the interest which the state still has in the property, after a sale, or, what is the same thing, to consider the relation between the state and the purchaser. That relation is in substance the relation between mortgagee and mortgagor. True it is not in form; yet I think it would have been if the constitution had been obeyed; for it provided that in any case of a sale" of school lands on credit, the state should take back a mortgage as security. Art. X,
For these reasons, we think an injury to the security is the essential element of such a cause of action. And because there was no proof to show that the security was injured, the finding that the plaintiff was entitled to recover the full value of the trees cut was not sustained by the evidence, and a new trial should have been granted.
The judgment is reversed, with costs, and the cause remanded for a new trial..