Wausau Boom Co. v. Plumer

| Wis. | Jun 15, 1874

Dixon, O. J.

The corporate existence of the plaintiff was admitted. It was alleged in the complaint, and not denied by the answer. The receiving and storage of the logs of the defendant, at his request, in the booms possessed and controlled by the plaintiff, wa.s directly and explicitly shown. The witness McCarty, the boom-master of the plaintiff in charge of the booms, testified that the defendant himself brought up the board with the marks of his, defendant’s, logs upon it, and delivered it to the witness at the opening of the divide where the logs were to be taken from the open river and turned into the booms. The same witness, speaking of the defendant, also testified: “ He told me to turn all of his marks into the boom.” There was other testimony, though less pointed and direct, tending also to establish the request. A good prima facie case was made in this particular.

The position assumed in this behalf by counsel for the defendant, that no request could be made by the defendant or contract entered into by or with the company for the storage of logs in its booms except in the manner prescribed by section 12 of the charter of the company (P. & L. Laws of 1871, ch. 45, sec. 12), is untenable. The design of that section was to facilitate the business of the company by enabling its officers and agents to ascertain in advance of the log-driving season what logs and what quantities of them the company are expected to receive and store during the approaching season; and it was obviously not the intention to limit the powers of the company or its capacity to contract for the storage of logs to such only as were brought to it in the manner therein prescribed, or by persons who had expressed their desire in that way to have their logs or timber' retained and stored in its booms. Independently of that mode of contracting, and by virtue of the general power and authority conferred upon the company to enter into contracts in relation to its business (sec. 1), it was competent for it to bargain and agree for the storage of logs in any other way in which a lawful contract could be made.

The company having charged or claimed no more for the storage of the logs than by section 13 of the charter it was authorized to demand and receive, we are of opinion that a presumptively valid agreement was shown by the evidence, and that the nonsuit was in this respect wrong.

The other ground of nonsuit urged, and upon which it seems to have been in part, if not wholly, granted by the learned judge of the circuit court, is, that the defendant is or was a tenant in common with the plaintiff, or some other persons, of the booms, piers and fixtures, or some part of them, in which the logs were stored, and that, being such tenant in common, the possession of the plaintiff or of the others was his, defendant’s, possession, and hence there could be no recovery against the defendant for the use of his own property. How it was found that such tenancy existed, or what the evidence of it before the court was, we are quite unable to discover. The bill of exceptions fails to show that any evidence of the kind was given, and our attention has been directed only to sections 20 to 23, inclusive, of the act of incorporation above referred to, and to the case of Clark v. Plummer, 31 Wis., 442" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/clark-v-plummer-6601109?utm_source=webapp" opinion_id="6601109">31 Wis., 442. How it is to be inferred, in the absence of all evidence upon the subject, that the company plaintiff has not acquired the interest of the defendant in the piers, booms and adjacent lands pursuant to the authority given by the sections of the charter last cited, is not easy for us to perceive, especially in view of the fact, clearly established on the trial below, that the company was in the full and exclusive possession, use and enjoyment of the piers, booms and lands at the time of the storage in question. Possession, unexplained or not shown to be held in subordination to the rights of another, is always looked upon as prima facie evidence of title in the possessor. It appears to us that such is the rule which should prevail here, and that upon this point the testimony for the plaintiff also made a good case for recovery against the defendant. But suppose the company has not acquired the interest of the defendant in the piers, booms and lands: what then will be the result ? The company might be liable to the defendant for their use to the extent of his property in them, or it might be liable in the trespass or some other form of action for unlawfully taking possession or excluding the defendant; but how would that affect a contract fairly entered into for the storage of the defendant’s logs ? It is not clearly seen by us that it could have any effect, any more than upon a contract by an individual with a railway company for the carriage of freight, that he should be able to show that the company had crossed his land or was in the possession and use of it wrongfully for its track, or without having agreed for or lawfully acquired the right of way.

Neither can it make any difference that the defendant is one of the associates or corporators named in the charter of the company plaintiff, or that he may be or is a stockholder, director or other officer of the company. The legal entity of the company is not affected by this circumstance, and it may in its distinct corporate capacity sue him in his capacity of an individual or natural person, which is also quite distinct and separate.

In every point of view, therefore, we are of opinion that the judgment of nonsuit was wrong, and that it should be reversed, and the cause remanded for a new trial.according to law.

By the Court. — It is so ordered.