Leihy v. Ashland Lumber Co. , 49 Wis. 165 ( 1880 )

Tatlob, J.

The first objection made to the complaint by the learned counsel for the respondent, is that it does not allege that the plaintiff owned the land or dam at the time of the alleged trespass. The point of this objection is, that as the complaint alleges that plaintiff was the owner on the first of May, 1877, and from that time forward, and then alleges that the trespass was committed on or about the first of May, 1877, the trespass might have been committed before 'the plaintiff became the owner. We think this objection is quite too technical and refined. The allegation is substantially that, on the first of May, 1877, the plaintiff owned the land and dam, and that on that day the defendant, without his authority or consent, destroyed the dam, to Ms damage of $1,000. We think it is sufficiently alleged that the wrong was committed when plaintiff was the owner of the property destroyed.

The second objection to the complaint is, that it does not sufficiently allege that the plaintiff had either the title or possession of the lands described in the complaint, when the alleged trespass was committed. We think the allegation that the plaintiff was the owner of the lands and dam is a sufficient allegation both of title and possession to sustain an action for an inj ury to the possession or realty. An allegation of ownership is an allegation of title, and the possession or right of possession presumptively follows the ownership or title, in the absence of any proof showing that the possession or right of possession is in some person other than the owner. In pleading, it is not necessary to allege facts which the law presumes to be facts, or which the law implies from other facts alleged in the pleading. The complaint having alleged ownership of the lands and dam at the time of the alleged trespass, the law presumes that the owner was either in the actual possession or had the right to the immediate possession, at the time of the wrongful entry of the defendant. 2 Wait’s Pr., 314, 315; Sheldon v. Hoy, 11 How. Pr., 11; Cowenhoven v. City of Brooklyn, 38 Barb., 9, 12.

Under this complaint it would be competent for the plaintiff to show upon the trial, either that he was in the actual possession of the lands and dam when the defendant entered and destroyed the same, or that he had a valid title to the same, and therefore the constructive possession thereof; and in either case he would make out his case if he proved the wrongful acts of the defendant as alleged. This case is not like the case of Wals v. Grosvenor, 31 Wis., 681. That was an action to quiet title under R. S. 1858, ch. 141, sec. 29; and in order to make out a cause of action in such case it is necessary to show that the plaintiff was in the actual possession of the land at the time of the commencement of his action, and therefore necessary to allege such possession in Ms complaint. And as such actual possession is not implied by an allegation of title, the complaint would not be good without containing the allegation of such possession. Bat even in that case an allegation of title and possession, without stating in the complaint that the possession was actual, was held sufficient, as the court would imply that possession meant actual possession in that case. See pp. 686-7.

There was no necessity of alleging that the dam which the plaintiff says he owned and built, was not built in and across a navigable stream. In the absence of such negative allegation, there is no presumption that it was built across such stream.

The reasons above given for holding that the complaint states a good cause of action for the destruction of the plaintiff’s dam, show that the plaintiff’s second cause of action is also sufficiently stated in his complaint.

The demurrer should have been overruled, and the defendant required to answer upon the merits.

By the Court.— The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings according to law.