Millard v. McDonald Lumber Co. , 64 Wis. 626 ( 1885 )

OetoN, J.

Tbe complaint of tbe respondents, as plaintiffs; is in the common form of trover and conversion of 290,00'0 feet of tbe plaintiffs’ pine lumber of tbe value of $4,060> and tbe answer is a general denial. On tbe trial, when tÜe plaintiffs’ counsel offered in evidence their chain of title deeds to tbe lands from which the logs from which said lumber was made was wrongfully cut by one John 0. Clark, who sold said logs to tbe defendant, tbe learned counsel of tbe defendant objected to such evidence because such facts were not stated in tbe complaint. Tbe first exception taken was to tbe overruling of said objection.

Tbe purpose of this evidence was to prove tbe plaintiffs’ title to tbe lumber, and its value at tbe time tbe logs were cut, according to tbe rule of damages in such cases, in accordance with sec. 4269, E. S. It was not claimed but that the defendant was tbe innocent purchaser of said logs, and therefore such was tbe rule of damages. In Smith v. Briggs, ante, p. 497, it is held that, in respect to logs, timber, and lumber wrongfully cut on tbe land of tbe plaintiff, tbe action under said section is merely for tbe value thereof, and not for damages as in trespass gxiare clausum, and is merely an action of trover, and that tbe only object of alleging .the wrongful cutting of tbe logs, timber, or lumber on tbe land of. tbe plaintiffs is to show title to tbe same, and tbe time at wbicb tbe value thereof should be ascertained. In such an action, of course, such facts are mere matters of evidence and not of pleading. Tyson v. McGuineas, 25 Wis. 657; Swift v. James, 50 Wis. 540; Johnson v. Ashland Lumber Co. 45 Wis. 119. If tbe learned counsel of tbe defendant bad understood otherwise, they would have unquestionably demurred to tbe complaint, or have objected to any evidence under it, on the ground that it did not state a cause of action. The only objection made seems to have been rested on their surprise in not having been informed by tbe complaint of these facts wbicb were then sought to be proved. Tbe only relief in such a case is to have tbe complaint made more definite and certain in these respects on motion, under sec. 2688, R. S., and not by demurrer or objection to evidence. Redmon v. Phœnix Fire Ins. Co. 51 Wis. 298. Not having so moved, all objection to the complaint in these respects was waived. Connors v. Taylor, 13 Wis. 230. There was no objection to all evidence under the complaint, but only to this particular evidence. Had a motion been made for the plaintiffs to make their complaint more definite and certain in these particulars, we are disposed to think that it might have been very properly granted; for in such an action, where the plaintiffs only claimed as damages the value of the lumber when the logs were cut from their land, it would seem better pleading to set out the description of the land from which the lumber was cut, and by whom and when it was so cut, in order to apprise the defendant of what was intended to be proved in these respects.

; The only other question discussed in the brief of the learned counsel of the appellant is raised in respect to the charge of the court and instructions asked, and that is whether, inasmuch as the person who did the cutting of the logs did so by the order and under the authority of Clark, it shall not be presumed that Clark had license or authority to do so. Where there are no other facts except the entry upon the lands of another and doing damage thereon, there is no presumption about it, but it is a trespass and wrongful. Dexter v. Cole, 6 Wis. 319; 2 Greenl. Ev. § 622; Guille v. Swam, 19 Johns. 381. Where one enters upon the land of another with such an apparent authority as to shift the burden of proving it without license or authority upon the owner, then it may be that he would be required to prove such negative, but there must be at least prima, facie evidence of such authority or license. The case of Lewis v. Disher, 32 Wis. 504, cited by the learned counsel of the appellant as holding otherwise, was where it appeared that certain persons had raised a crop of wheat upon certain premises which had been sold and deeded for taxes, and the question was whether it had been occupied within the three years by the original owner; and it was held that they must be presumed to have so occupied under the original owner and by his authority rather than that they were trespassers; and there was some evidence also of such authority, but not very strong, such as the testimony of the owner’s son that he thought that his father gave them the right to go on the premises, and other circumstances to aid such a presumption. The presumption in that case was in favor of the right of the owner; not hostile to it, as it would be in this case. But in such cases as this, license from the owner must be pleaded and proved in defense of the trespass. In Pomeroy v. M. & C. R. Co. 16 Wis. 640, the same objection was made that it was not alleged “that the entry was contrary to the wishes of the plaintiff, or that it was made unlawfully,” and it was held that this was presumed, “ and that if any license was given by the [plaintiff] it was matter of defense.” Lockhart v. Geir, 54 Wis. 134. And such is the elementary doctrine, without any conflict of decision. 1 Greenl. Ev. 19; Add. Torts, 316.

' The charge of the court appears to have been, full and correct, and the verdict of the jury seems to have been warranted by the .evidence, and we find no error in the record.

: By the Court.— The judgment of the circuit court is affirmed.