75 Wis. 589 | Wis. | 1890
The plaintiff brings this action of replevin, alleging that he was the owner and entitled to the possession of certain pine saw-logs, cedar railroad ties and posts, and cedar logs and timber, of the value of $2,994.58, and that the defendants wrongfully took said' property from the possession of the plaintiff and from his land, and wrongfully detain the same. The defendants answered by general denial, and tendering judgment for $375, and filed an affidavit that if any such timber was cut by them on said land it was done by mistake. The timber had been manufactured and sold, and therefore could not be delivered, and the case was tried as one of trespass.
2. The plaintiff, to prove title to the land on which the timber was cut, introduced in evidence a certificate of the sale thereof to the plaintiff by the Honorable James H. Harve, a commissioner appointed by the circuit court of Milwaukee county in the case of the Chicago & N. W. R. Co. v. Butler and others, dated October, 25, 1870. The defendants objected to the same, and now contend that said certificate was not sufficient proof of the plaintiff’s title. The certificate was made under and by virtue of ch. 57, Laws of 1868, entitled “ An act to authorize the Chicago & Northwestern Railway Company to execute a certain trust.” Sec. 7 of said act provides that “ such commissioner may give to such purchaser or purchasers certificate or certificates of such sale or sales, and of such purchase or purchases, which shall be received in evidence in any of the courts of this state, and shall be prima facie evidence of the facts therein contained, and shall be prima facie evidence of title in fee of the lands thereim described in the person or persons therein named, or his or their assigns.” This statute is too conclusive of the question to admit of argument. The language, “prima facie evidence of title in fee,” makes the certificate conclusive evidence of title in the plaintiff, unless the contrary is shown. The objection-was properly overruled.
3. The court .submitted the following questions to the jury for a special verdict, and the jury answered the same as follows: “(1) "What quantity of timber did defendant cut and remove from [the land] during the winter of 1885 and 1886? Answer. Pine, thirty thousand feet; cedar ties, 4,000; posts, 5,000;'cedar logs, twenty-five thousand feet.
The learned counsel of the appellant assigns as error these oral instructions to the jury, when there was no reporter present to write them, and without otherwise writing or having them written. The learned counsel states substantially in his brief what is contained in the bill of exceptions, as follows: When the court was so instructing the jury orally, the absence of the official reporter was not noticed by the court or its attention called to it. The reporter had left the eourt-room temporarily, unnoticed by the court. During the argument of the motion for a new trial, the counsel of the defendants admitted and stated to the court that he noticed the absence of the reporter at the time the jury were so orally instructed, and that he did not call the
4. It is contended that there is no allegation in the complaint that the timber was “ wrongfully cut,” so as to allow the recovery of the higher grade of damages under sec. 4269, R. S. The complaint alleges that the defendants “ wrongfully took ” the timber from the lands, and it could not very well be taken from the lands without cutting. It substantially charges a “ wrongful cutting.”
>6, It is contended that the verdict is defective in not passing upon all of the issues. It did not’find that the timber was wrongfully cut, or, that the plaintiff was the owner and -entitled to the possession. If.the cutting was not justified, or was not by mistake, it follows that it was wrongful, and the jury found that the cutting was done, and that it was not done by mistake. The statute requires only controverted issues of fact to be submitted to the jury for special verdict, and there was no controversy about the ownership of the land or right of possession of the property, and the evidence was undisputed. There was no evidence to overcome the presumption or primafacie evidence of title in fee, imported by the certificate. Hutchinson v. C. & N. W. R. Co. 41 Wis. 552; Williams v. Porter, 41 Wis. 422; McNarra v. C. & N. W. R. Co. 41 Wis. 69; McHugh v. C. & N. W. R. Co. 41 Wis. 75; Ward v. Busack, 46 Wis. 407; Eberhardt v. Sanger, 51 Wis. 72; Ault v. Wheeler & W. Mfg. Co. 54 Wis. 300; Pratt v. Peck, 65 Wis. 463. Refusal to submit questions which, on the evidence, could be answered only in one way, is not error. Weisel v. Spence, 59 Wis. 301.
The instructions appear to have been correct, and the
By the Court.— The judgment of the circuit court is affirmed.