68 Wis. 481 | Wis. | 1887
The plaintiffs brought their action to recover damages against the defendants for wrongfully cutting down and carrying away a large quantity of pine trees standing upon the land of the plaintiffs, and manufacturing the same into 'lumber at their mill situated in this state, and the plaintiffs claimed as damages the value of said lumber at the rate of $12 per thousand feet. The defendants by their answer admit the wrongful cutting and carrying away said pine trees and timber, and the manufacture of the same into lumber by them, but they contradict the allegations of the complaint as to quantity and value. They then set up facts which they claim bring them within the provisions of ch. 239, Laws of 1882, and offer to allow judgment to be entered against them for the sum of $606.60 and the costs of the action, which they allege is the full amount of the damages the plaintiffs are entitled to recover in the action.
There is no denial of the wrongful cutting and conversion of the plaintiffs’ pine timber by the defendants, and the plaintiffs are, under the decisions of this court, entitled to recover as damages, under the provisions of sec. 4269, R. S., “ the highest market value of such logs, timber, or lumber, in whatsoever place, shape, or condition, manufactured or unmanufactured, the same shall have been at any time before the trial while in possession of the trespasser,” unless the defendants, by their answer and proofs upon the trial, have brought themselves within the provisions of said ch. 239, Laws of 1882. This chapter adds the following proviso to said section: “ Provided, that in all actions hereafter
The facts established on the trial were in substance as follows:
First. The plaintiffs showed title in themselves derived from the government, appearing of record.
Second. At the time the defendants acquired their title to the land from which the timber was afterwards cut, a tax deed had been issued in due form by the county of Monroe, bearing date the 15th day of May, 1873, to one George Runkle, which had been duly recorded in the office of the register of deeds of said county; that for more than three years after the recording of said tax deed the said lands had remained wholly unoccupied; that the title which Runkle obtained by said tax deed had been duly conveyed, by a regular chain of title, from said Runkle to the defendants; and that under such title the defendants entered and cut said logs.
Third. That at the time the defendants acquired their said title they had no knowledge, actual or constructive, .that said Runkle had within the three years next after the recording of his tax deed, and before he made a conveyance thereof to James F. Freeman in 1877, under and through whom the defendants obtained their title, released and conveyed all claim he had to said lands under and by virtue of said tax deed to the original owners of said lands, under whom the plaintiffs now claim title.
Fourth. That before the defendants cut and removed the
Fifth. During the pendency of that action the timber in question in the present action was cut and removed by the defendants.
Upon these facts the learned circuit judge instructed the jury, among other things, on the question of the good faith of the defendants in cutting the logs in question, as follows: “Now, defendants were sued, and they had notice in that action, by the pleadings, of just exactly what the plaintiffs claimed. This action was commenced in January,
After a -verdict for the plaintiffs, in which the jury found that the entry of the defendants upon the plaintiffs’ land, and the cutting and removal of the timber therefrom, was not in good faith; that the actual damage sustained was $926; and that the highest market value of the lumber manufactured from such timber was $3,'104,— on motion of the defendants for a new trial the learned circuit judge came to the conclusion that he had erred in instructing the
“The motion of the defendants'for a new trial herein, or that judgment be entered on - the verdict of the jury in favor of the plaintiffs for the smaller sum mentioned in said verdict, having been duly argued before the court, and the court being sufficiently advised in respect thereto, it is ordered that unless the plaintiffs elect to and do enter -herein judgment upon said verdict for the lesser sum mentioned therein, with interest from láspril 1, 1883, pursuant to the statute, within thirty days after service upon the attorneys for the plaintiffs of a copy of' this order, that then and in that event said verdict be set- aside and a new trial of this action be granted, with costs- Jo abide the event. And it is further ordered that this order be entered as of the 17th day of October, 1885, being .the last day of the October term, 1885, of the said court in said county. And it is further ordered that plaintiffs’ motion for judgment on the verdict for-the value of the manufactured lumber — that is to say, the sum of $3,704 — be, and the same is hereby, denied.”
Erom this order the plaintiffs appeal to this court.
The important question in this" case is whether, at the time the defendants cut the timber in question, they were justified in believing they had a valid title to the lands upon which it was standing. It seems to us that it cannot be argued with any degree of plausibility that the defendants could have in good faith acquired a title to said lands, within the meaning of said cb: 239, Laws of 1S82, if, at the time they purchased such' titlepthey had knowledge of all thé facts which as a matter^of law rendered their supposed title invalid. Without holding that in order to acquire in good faith a title to land, within the meaning of said act, it is necessary that the defendant should have acquired it under such circumstances as would render him a bona fide
Under the law as it stood before the amendment of 1882, this court never held that the defendant could excuse himself from responding in the larger damages because he made a mistake as to his title, and in some of the cases it is strongly intimated that such mistake was not a mistake within the meaning of the law. The following cases, involving, to some extent, the construction to be given to said sec. 4269, R. S., have been decided- in this court: Webster v. Moe, 35 Wis. 79; Brewster v. Carmichael, 39 Wis. 456; Webber v. Quaw, 46 Wis. 122; Wright v. E. E. Bolles Wooden Warre Co. 50 Wis. 169, 171; Haseltine v. Mosher, 51 Wis. 443; Tuttle v. Wilson, 52 Wis. 643; Smith v. Sherry,
We have no reason for thinking that the legislature intended to provide for such a mistake by the amendment of 1882. Had such been the intention of the legislature, it seems to us that other language would have been used to express such intention. Under the rule above stated it may be that when the defendants acquired their title to said lands, they acquired it in good faith, and entered on the land believing such title to be valid; and, had they cut and removed the timber before acquiring any other knowledge as to the validity of their title, they may have brought themselves within the statute.- But the statute says the timber must be cut under like circumstances. We do not think it a protection to the defendant that he acquired his title in good faith, believing it to J>e valid, if after acquiring such title, and before he cuts and removes the timber, he is fully informed of the invalidity of his title. After he receives such information he can no longer claim title to the land in good faith; and if thereafter he strips the land, he must do so at the risk of establishing his title, or pay. the larger damages. It is perhaps difficult to determine with precision what was meant^by the act of 1882; but we think we are not running across either the meaning of the language used or the-intention of .the legislature, by holding that a defendant in an action brought under said sec. 4269, R. S., as amended, is not protected by the
In this view of the case it is clear the learned circuit judge was mistaken in his construction of the statute upon the motion for a new trial, and that he erred in setting aside the verdict for the reasons stated in his opinion upon such motion. ¥e are, however, of the opinion that the learned circuit judge erred in his charge to the jury when they returned into court and requested further instruction as to what was necessary to constitute good faith under the statute. It will be seen, by an examination of the instructions then given to the jury, that they were told, in substance, that if, at the time the defendants cut the timber, they knew that the plaintiffs claimed to own the lands, then the defendants could not be said to have cut the timber in good faith, believing that they had title to the lands. This instruction was stronger in favor of the plaintiffs than was given in his original charge, and may have induced the jury to render the verdict they did upon this question. We do not think a mere notice to the defendant that the plaintiff claims to own the lands in controversy is sufficient to prevent a defendant from availing himself of the provisions of the statute. He must have notice of the facts upon which the plaintiff’s claim of title is based, and of the facts which render the defendant’s title invalid. It may be that there was sufficient evidence in the case to have justified the jury in finding that the defendants had knowledge of
' The instructions given to the jury as above stated wore duly excepted to by the defendants, -and for this reason a new trial was properly granteddn the case. The condition upon which the order granting a new trial was made, is one_which the plaintiffs may accept or refuse in their discretion, and they cannot be said to be injured by it.
By the Court.— The order of the^circuit court is affirmed, and the cause is remanded for a new trial, unless the plaintiffs shall elect to take judgment.for the sum specified in the order granting the new trial.