Brewster v. Carmichael

Lyon, J. Numerous reasons are given for a reversal of the judgment appealed from; hut the case is controlled by a few facts and principles, which can best be stated and applied without attempting to refer, in detail, to the alleged errors assigned for the apj>ellant. The undisputed evidence given on the trial proved conclusively, that in the winter of 1871-2, one McCann cut a quantity of logs for the defendant on lands belonging to one Crowley, without any authority whatever; that the logs after-wards passed into the possession of the defendant; that in October, 1872, Crowley sold and conveyed the same logs to the plaintiffs, who duly demanded them of the defendant; that the latter refused to deliver them on such demand, or to pay for them; and that the value of. the logs, when this action was commenced, was greater than the amount of the judgment therefor recovered by the plaintiffs. Under these circumstances, we think the court properly directed the jury to find for the plaintiffs; and if the jury were directed to assess the value of the logs and the damages at too high figures, the error was abundantly cured (unless an incorrect rule for ascertaining such value was applied) by the discount therefrom of ten per cent., and the rendition of judgment for the reduced sum only. This brings us to inquire whether the proper rule was applied to ascertain the value of the logs. The court rejected [460] proof of tbe value of stumpage; and it is entirely clear that tlie rule prescribed' by cb. 263, Laws of 1873, was applied for tbat purpose. Tbe cause of action arose before tbe enactment of tbat statute, and also before tbe decision of Single v. Schneider, 30 Wis., 570, which led to it. In Webster v. Moe, 35 Wis., 74, there -is a strong intimation tbat tbe rule of tbe statute ought to be applied in all actions for tbe wrongful cutting of timber, whether tbe cause of' action accrued before or after tbe statute was enacted; and it was applied in tbat case to a cause of action older than tbe statute, so far as was necessary to sustain tbe rulings of tbe court below, but not to tbe full extent of tbe statutory rule. Surely tbe maxim stare de-oisis cannot be invoked to control tbe rule of damages in an action for a tort; and there are very cogent reasons why tbe statutory rule should have prevailed- always. At any rate, after tbe legislature has settled tbe policy of tbe state in tbat behalf, no good reason is perceived why tbe courts should not adopt and enforce tbat policy in all cases, without regard to tbe date of tbe trespass., Hence, we think tbe correct rule was applied'in this case, when the court allowed tbe plaintiffs to recover on the basis of tbe value of tbe logs at tbe commencement of tbe action, wbicb is clearly within tbe statutory rule. It follows from tbe foregoing views tbat tbe court properly rejected proof of tbe value of stumpage. It is understood tbat logs, like wheat and many other staples, have at all times a market value, which can readily be ascertained without resorting to proof of tbe cost of production. And it seems to be as unnecessary to show tbe value of stumpage in order to ascertain tbe value of logs, as it would be to show tbe cost of plowing tbe ground upon wdiieh it was grown in order to fix tbe market price of wheat. But it is said tbat there is no sufficient proof tbat tbe logs seized by tbe sheriff are tbe identical logs cut by McCann upon Crowley’s land. It seems to be claimed by counsel for the [461] appellant tbat sncb proof is essential to the maintenance of tbe action. This view is untenable. The logs replevied were returned to the defendant, and, manifestly, the parties are in the same position in respect to them as they would have occupied had the property not been seized and returned, in •which case there is no doubt whatever that the action might have proceeded to judgment for the plaintiff for the possession of the property, or for its value in case delivery thereof could not be had. In Dudley v. Ross, 27 Wis., 679, it was held that re-plevin can be maintained under our present law in any case where goods are wrongfully taken from the possession of the owner, even though the statute expressly prohibits the owner from resorting to the provisional remedy therein provided to obtain immediate delivery of the property. The truth is, when, as in the present case, the property seized in replevin has been returned to the defendant, and the plaintiff takes judgment absolutely for the value thereof and damages for the detention, the action of replevin “ performs the functions and accomplishes the results of an action of trover,” and no good reason is perceived why, in such cases, replevin and trover are not concurrent remedies, governed by the same rules. Bigelow v. Doolittle, 36 Wis., 115, is authority for this position. "We conclude, therefore, that it is entirely immaterial in the present case, whether the sheriff seized the logs described in the complaint or some other logs, on the provisional proceeding in that behalf. And it is also immaterial whether the defendant' intermingled the logs in controversy with others having the same mark upon them, as charged in the complaint. The gist of the action is the alleged unlawful taking and detention of the logs by the defendants, and such taking and detention are abundantly proved by undisputed evidence. By the Oowrt. — The judgment of the circuit court is affirmed.