Fehrman v. Bissell Lumber Co. ( 1925 )

The following opinions were filed June 22, 1925:

Owen, J.

This action was brought to 'recover damages for trespass and conversion of timber alleged to have been unlawfully cut from the north half of the northeast quarter of section 10, township 35 north, of range 4 east, in Lincoln county, Wisconsin, and more particularly that part thereof included within the triangle marked Y N B on the diagram on page 84.

The question presented is whether the line X Y K B or the line X N A B constitutes the section line between sections 3 and 10, the appellant claiming the first, and the respondent the latter, to be such line.

The case was tried before a jury, which found the line X Y K B to be the true line. The court set aside the verdict of the jury, holding that under the evidence the line X N A B is the true line. The appeal raises the question whether there was any evidence to sustain the verdict of the jury. The real question is whether the quarter post between sections 3 and 10 is a lost or obliterated corner, as, if it is a lost corner, there is no dispute but that a relocation

thereof in accordance with established rules, fixes it at Y. It is claimed by respondent that it is not a lost corner, and its contention is based upon evidence which may be epitomized as follows: The witness H. H. Stolle, who was chairman of the town m which the' disputed premises are located for a period of fifteen years, from about 1905 to 1920, testified that in 1902 he was one of the stockholders and looked after the logging operations of the Stolle Lumber & Veneer Company. That company owned the northern four forties of section 10 and prosecuted logging operations upon said forties in 1902; that before starting to log said forties the witness, together with his foreman, located the section line between sections 10 and 3. He testified that he located the witness trees bearing upon the quarter corner. They corresponded with the witness trees mentioned in the field-notes. They had the government marks on them, section.” He did not claim that he found the government stake, but testified that there was some old rotted-down stake . there. The quarter corner as thus located is at the point A on the diagram. The dotted lines on the diagram running east and west and north and south represent existing roads and highways which cross at A, the place where Stolle claims the quarter corner to be, but those roads were not there at the time Stolle located the quarter corners. Stolle also' testified that he found blazes on the trees located east and west along the line X N A B. He did not, however, place any stake at the point which he located as the quarter corner. The Stolle Lumber & Veneer Company cut no timber north of the line so fixed by Stolle as the section line between sections 3 and 10.

Another witness, J. F. Kavanaugh, testified that he saw one witness tree at the quarter comer between sections 3 and 10 in 1902. “There was a spot on it, and bearing marks on it, but they were a little dim. And I clawed down below the root and I found two letters there, quite plain. The letters ‘B T.’ ” It was very close to where the roads now cross, but there were no roads there at that time. He did not find anything resembling a government corner stake.

Another witness, Abe Yohn, testified that he was running a camp for the Stolle-Brandt Lumber Company in 1902 and 1903, when they were cutting on the north half of the northeast quarter of section 10. He testified that he saw a hemlock tree upon which there were government marks reading section.” He testifies also that there was a new quarter post stuck in there. This was at the point marked A on the diagram.

This testimony, standing alone, was sufficient to locate the quarter post at the point A, and if the jury was bound to believe it they were unwarranted in finding that the true quarter comer was at point Y. They could not disregard it or disbelieve it unless the record contained evidence impeaching it. The trial court came to the conclusion that “there is nothing in the evidence that seriously impeaches the testimony of these witnesses,” and accordingly set aside the verdict of the jury in this respect. It is necessary, therefore, to consider whether the evidence relied upon by the plaintiff is sufficient to cast doubt on the testimony of these witnesses or to justify a contrary inference.

It is conceded that the northeast and northwest comers of section 10 are known corners. The government field-notes indicate that in surveying between sections 3 and 10 the surveyors started at the northeast quarter of section 10, proceeded west 39 chains and 87 links, and set the quarter-section post; that at 45 chains and 30 links they struck the Somo river, and that at 79 chains and 75 links they set the northwest corner of section 10. The line X Y K B corresponds with the distances called for by the field-notes, while it is apparent that the line X N A B calls for a considerably longer distance. The government field-notes show the distance from the° northeast comer of section 10 to the quarter corner to be 39 chains and 87 links, and from that corner to the Somo river-a distance of 45 chains and 50 links. It necessarily follows that the distance from the quarter corner to the Somo river is 5 chains and 63 links, or practically 22 rods. The distance from Y to the Somo river was not measured by any surveyor, but surveyor Smith testified that it was about 22 rods. Although he did not measure the distance, his opinion as to the distance cannot be utterly ignored, as it is the opinion of one who has had experience in both estimating and measuring distances. It is undisputed that the point A, where appellant claims the quarter post to be, is about 12 rods south and about 12 rods east of point Y. The distance from point A to the Somo river was measured and found to be 33 rods. Blazed trees were found along the line X Y K B by the two surveyors who testified in the case. Stolle did not deny that there were blazed trees along that line. He said there might have been, but they were not sufficiently numerous to interest him.

Louis Kleinschmidt testified that when he was county surveyor of Lincoln county, beginning at the north line of section 3 he ran south along the quarter line of section 3. When he had chained a mile he was about ten rods north of point A. He found an old stake at the cross-roads, but he did not see any of the original government trees. He found a stake upon one side which was marked “R¡,” and on the other side it was pretty rotten. He would not say it was an original stake. He said it was an old stake. This was long- after Stolle had located the corner. He stopped chaining when he was ten rods north of this post. After looking around and finding this post he chained eight or ten rods further to the post. Taking this as the quarter post, he found section 3 big from north to south.-

It is undisputed in the evidence that a survey along the north-and-south quarter line through sections 3 and 10 intersected the section line between sections 3 and 10 very nearly at point Y.

A circular of the General Land Office relating to the restoration of lost and obliterated corners, issued in 1903, states:

“An obliterated corner is one where no visible evidence remains of the work of the original surveyor in establishing it. 'Its location may, however, have been preserved beyond all question by acts of landowners, and by the memory of those who knew and recollect the true situs of the original monument. In such, cases it is not a lost corner.”

The evidence in this case discloses no acts of landowners which can be construed as preserving the quarter corner in question. The only human activity disclosed by the evidence which can be said to have had any relation to that corner was the laying out and opening up of the highways which intersect at point A on the diagram. At the time these highways were laid out Mr. Stolle was chairman of the town, and he, with two other witnesses, are the only ones who testified in this case who claimed to have had any general knowledge concerning this comer. None of them claimed to have found the stake. They do claim, however, to have found a bearing tree. The act of Mr. Stolle in laying out the highway cannot be accorded great weight as the act of landowners which may be construed as a preservation of the corner. As we view it, the question comes down to this: Is the evidence of three witnesses, who claim they found the bearing trees, conclusive as to the original location of this quarter corner? If that be true, then it is within the power of corrupt witnesses, who are willing to testify directly and clearly to the necessary facts, to establish a government corner wherever they will. Such cannot be the law. We do not impute either dishonesty or corruption to the testimony of these witnesses. But their testimony must be weighed by the rules which are generally applied in the consideration of evidence.

There is much evidence in this case which justifies the inference that the quarter corner in question was not located at point A. In the first place, it does not correspond in any single particular with the original field-notes-. We have in mind the rule that monuments such as witness trees and stakes established by the original survey, or any natural object, such as a river, mentioned in the survey, will control courses, distances, and quantity. Lind v. Hustad, 147 Wis. 56, 132 N. W. 753. But these, are rules to be applied after the existence of such monuments are definitely determined. We are now analyzing the evidence for the purpose of determining whether the testimony relating to the existence of the witness trees at this quarter corner is conclusive that the original quarter post was located at point A. So we say, in the first place, that the existence of such witness trees at the point testified to is inconsistent with every distance mentioned in the field-notes. Point A is ten rods too close to the southeast corner of section 3, and ten rods too far distant from the southwest comer of section 3. It is some eleven rods too far distant from the Somo river, according to the field-notes. The Sjomo river is a natural monument and its relation to the point where the quarter post was established is of great weight. This is a natural monument the existence of which does not depend upon the memory or the testimony of witnesses. The location of a corner at point A is inconsistent with its distance from the Somo river as declared by the field-notes. It is inconsistent with the idea that the section line between section 10 and section 3 is a straight line. It is inconsistent with a straight north-and-south quarter line through sections 3 and 10, both of which are called for by the field-notes.

In view of all these circumstances we do not think that the jury was obliged to treat the bare testimony of these witnesses concerning the location of this quarter corner as conclusive. Just as the testimony of witnesses may be corroborated, so may such testimony be impeached, by extraneous facts and circumstances. We think the verdict of the jury was not only justified by the evidence in. this case, but that it was in accordance with the reasonable inferences to be drawn therefrom. We therefore hold that the trial court erred in changing the answer of the jury to the first question. It results from this conclusion that the plaintiff is entitled to recover for the value of the timber removed from the disputed premises., and this raises the question of plaintiff’s measure of damages.

Sec. 4269, Stats., provides that—

“In all actions to recover the possession or value of logs, timber or lumber wrongfully cut upon the land of the plaintiff or to recover damages for such trespass 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 the possession of the trespasser or any purchaser from him with notice, shall be found or awarded to the plaintiff, if he succeed, except as in this section provided.”

The section then provides for two exceptions. The first is that “The defendant in any such action may, at or before the time of the service of his answer, serve on the plaintiff his affidavit that such cutting was done by mistake and therewith an offer, in writing, to allow judgment to be taken against him for the sum therein specified, with costs.” It is then provided that the plaintiff may accept the offer, and, if not accepted, the affidavit shall be deemed traversed, and the question of mistake shall be submitted to the jury. In this case the defendant made no such affidavit or offer and took no steps whatever to bring itself within this exception to the general provision of the statute. Defendant does claim, however, that it has brought itself within the next exception of the statute, which reads: “provided, that in all actions hereafter commenced when the defendant shall have in good faith acquired a title to and entered upon the land under the same, believing such title to be valid, and shall have cut the timber therefrom under such circumstances, then the plaintiff, if he shall recover, shall, recover only the actual damages sustained by reason of such cutting.”

Defendant’s contention cannot be sustained. No question is raised concerning the validity of plaintiff’s title to the land which it actually purchased. The dispute in this case is as to the location of the boundary lines of the lands to which it has conceded title. It is nothing more nor less than a boundary-line dispute. If the controversy in this case can be said to be a dispute concerning title to> land which the defendant claims, to own, then there can be no such thing as a boundary-line dispute, and all controversies of this nature involve title to land. Defendant cut this timber evidently believing it to be on land to which it had an undisputed title. It was simply mistaken as to the boundaries of the land which it actually owned. The cutting, therefore, was by mistake, but the defendant did not proceed in the manner prescribed by sec. 4269 to tender that issue. The fact that the cutting was done by mistake, therefore, is not available to the defendant as a defense in this action. The court improperly submitted to the jury the question whether such cutting was done by mistake, as no such issue was raised or tendered. It follows that the plaintiff is entitled to recover as damages the log value of the timber cut.

By the Court. — Judgment reversed, and cause remanded with instructions to’ render judgment in favor of the plaintiff for the log value of the timber cut upon the disputed premises.