Whitney v. Morrow , 34 Wis. 644 ( 1874 )

Cole, J.

We think the order sustaining the demurrer to the complaint must be affirmed. The action is brought under ch. 143, E. S., to recover damages for waste committed by the defendant; and the objection is taken, that upon the facts it appears that there was no privity of title or estate between the parties when the alleged waste was committed, but that the defendant held under a claim of title independent of and hostile to that of the plaintiffs. It seems to us this objection is insuperable.

The acts of waste were committed prior to the issue of the patent to Pierre Grignon, under whom, the plaintiffs claim title, and there never was in fact any privity of estate between the parties. In the case in 31 Wis., 359, we held that until a survey was made of Grignon’s claim under the direction of the commissioner of the land office, as contemplated by the act of congress of 1860, and until this survey was approved by the executive department, and a certificate as evidence of that fact, or a patent, issued, neither Grignon nor his assigns had the equitable title and ownership of any specific tract of land. The counsel for the plaintiffs contends that the effect of that act of congress was to create between the parties the relation of tenants in common. A tenancy in common of what, and between whom ? It seems to us perfectly plain that the act of congress was intended to secare to Pierre Grignon and his heirs and assigns the entire interest in a certain tract which should be ascertained in the manner designated. But that act does not attempt to confer upon the defendant, or the party through whom he claims, any interest in that land. Indeed the defendant does not assert any title through Pierre Grignon, or attempt to connect himself with that title in any manner; but he claims the land through Alexis Gardapier, an entirely independent and hostile equitable claim, or equitable title. He is therefore a stranger to that title, and the party through whom he claims always asserted a right hostile to that of Grignon. There never was any privity between these parties; and, as it seems to us there is no ground for saying that the relation of tenants in common in any land ever existed between them, or between the original claimants, Grignon and Gardapier. If the entire vacant strip had been conveyed to Grignon and Gardapier by the same grant, and not distinct parts of that strip given to each by different acts, there would be good ground for saying that they took their interests as tenants in common. But the act of 1860 confirmed to Grignon a certain part of the vacant strip, the title remaining in the United States until a survey was made and a patent tberefor issued, which was not until 1870, long after the injury complained of was committed. It is true, the vacant strip was divided — that is, the part granted to each by the different acts of congress was ascertained and designated by the commissioner of the land office. But the entire title -to the particular tract was vested in each claimant or their assigns, and the parties had no interest in common, nor any such privity of estate as would enable one party to maintain an action of waste for trespasses committed by the others.

Nor can we see that the plaintiffs derive any aid from the doctrine of relation. “ The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title.” Gibson v. Chouteau, 13 Wallace, 92-101. But how this principle aids the plaintiffs in maintaining an action of waste we fail to understand. Our statute gives the action of waste, or case in the nature of waste, only where there is a privity of estate between the parties; and even if it could be demonstrated that by relation the plaintiffs must be considered the real owners of the land upon which the timber was cut at the time the trespass was committed, this would not establish their right to this remedy.

The counsel for the defendant, in his brief, requested us to give our views upon several questions submitted by him. We must respectfully decline to comply with the request, for the reason that it is not necessary to the decision of this cause that we should do so; and, moreover, we have heretofore expressed our views upon those precise questions at sufficient length, as we supposed.

By the Court. — The order of the circuit court is affirmed.