Dunbar v. Montreal River Lumber Co.

WiNsnow, J. Tbis is an action to recover damages for tbe cutting of timber upon eight forty-acre tracts of land, tbe complaint containing one count for trespass and one count for conversion, both counts covering tbe same lands and timber. At tbe time tbe acts 'of trespass and Conversion were committed tbe title to tbe lands and timber was in tbe plaintifPs grantor, tbe Hoffman Land Company. As to one of tbe forty-acre tracts tbe jury found that tbe trespass thereon was committed by tbe defendant, as to two of tbe tracts there was no proof, and as to tbe remaining five tracts tbe jury found that [132] tbe trespass was committed by one Stabler and tbat tbe logs were afterwards sold to and converted by tbe defendant, and judgment was rendered for tbe value of tbe logs wbicb tbe defendant cut as well as tbe logs wbicb it converted. Prior to tbe commencement of tbe action tbe Hoffman Land Company sold and conveyed all tbe lands in question to tbe plaintiff by warranty deed, sueb deed containing tbe following clause: “Tbe grantor hereby assigns and transfers to tbe grantee all its claims, or causes of action for or on account of any trespass upon tbe real estate above described.” Tbe only question upon tbe merits raised upon tbe appeal is as to tbe correctness of tbat part of tbe judgment wbicb awards tbe plaintiff a recovery for tbe logs converted by tbe defendant. Tbe argument is tbat tbe assignment above quoted does not cover a cause of action for conversion, but only causes of action for trespass. Had tbe assignment not contained the words “on account of” tbe appellant’s argument would be strong tbat only causes of action for trespass were assigned,, but tbe language is “causes of action for or on account of any trespass.” This is a question of construction only, and tbe language used must be construed reasonably to give every word effect, if possible. Giving it tbe construction contended for by tbe appellant, tbe words “on account of” are absolutely superfluous and without meaning, because all claims for trespass are effectually assigned without them. “On account of” doubtless means “by reason of.” Brown v. German-American T. & T. Co. 174 Pa. St. 443, 461, 34 Atl. 335, 343. A cause of action in trover for tbe conversion of logs previously cut by a trespasser certainly seems to be a cause of action resulting “by reason of” tbe initial trespass; tbe conversion is a natural and legitimate result of tbe trespass. It is difficult to see to what other claims or causes of action tbe words can refer, except claims or causes of action for conversion; and, as we have seen, tbe words should be given some meaning i£ [133] there be a reasonable meaning consistent with the evident intent of the parties which can be given to them. There is little in 'the way of authority which throws light upon the question, but we are satisfied that the trial court was right in construing the assignment as covering causes of action for conversion. The remaining question in the case arises upon the taxation of costs. Our statute provides in substance (Stats. 1898, sec. 2922) that when in such actions as the present the amount recovered exceeds $50 the plaintiff shall recover full costs, including therein “any actual reasonable expense of one survey and ascertainment of the quantity of timber so cut, or cut and converted . . . made after the commencement of the action by one surveyor and one assistant if duly proved as a necessary disbursement.” Under this section the plaintiff presented for taxation among the disbursements of the cost bill an item of $638.15, made up of the following items: 1903. Nov. Paid twenty-six days’ surveying and scaling trespass in town 44, 2 El. $130 00 Paid assistant for twenty-three days at $5 per'day_ 115 00 Paid cook for twenty-four days at $2.50 per day. 60 00 Paid two chainmen for twenty-five days each at $2 per day . 100 00 Paid one flagman for twenty-four days, at $2 per day.. 48 00 Paid one axman for fifteen days at $2 per day. 30 00 Paid livery hire. 27 00 Paid man to pack groceries from Hurley, two days.... 3 00 Paid for grinding axes, drayage, express, oil, lantern, and spikes.'.. 4 00 Paid for groceries and supplies. 61 74 Paid for repairing broken flag. 2 50 Paid for hotel bill at Hurley. 12 50 Paid expenses to Wausau and return, making report, and making bill of expenses of survey. 8 85 Paid railroad fare and express. 26 06 Paid for fleld-notes and expense getting same. 5 00 Paid E. Brazell for services rendered. 4 50 $638 15 Objection was made to every item of this bill, and the clerk cut down the same to $100. Upon motion for retaxation of the costs before the court the clerk’s ruling was reversed and the whole sum of $638.15 was taxed and included in the judg [134] ment. The appellant assigns tbis ruling as error. Affidavits were presented on both sides before the clerk and before the court; those submitted on the part of the plaintiff tending to show that the charges were necessary and reasonable, and those on the part of the defendant tending to show that the whole work could have been easily done by a surveyor and one assistant at an expense not exceeding $100. The statute itself is exceptional and unusüal, and should receive no latitudinarian construction. It was intended to enable a plaintiff to reimburse himself for an actual and reasonable outlay of money necessary to ascertain and prove his damages, not to enable him to inflict punishment upon the defendant. While it covers the actual and reasonable expense of the survey, and thus may doubtless cover necessary expenses in addition to the mere per diem of the surveyor and assistant, it is clear that it is limited to the per diem and actual and reasonable expenses of “one surveyor and one assistant.” Neither the wages nor the expenses of axmen, chainmen, cooks, or flagmen in addition to the one assistant are included. Ita lex script® est. In the present case there were but two forties surveyed as to which proof was introduced by the plaintiff. Upon one forty, forty-eight logs, aggregating 8,000 feet, were cut, and this was admitted by the answer; upon the other, nineteen logs, aggregating 8,140 feet, were cut; and the damages recovered aggregated only $469. Upon the face of the charge it seems exorbitant, if not actually made in bad faith; nor is this conclusion removed by the affidavits. While the surveyor employed by the plaintiff made affidavit that the expenditures were all necessary, he included in the survey two forties in another section concerning which no testimony was introduced and no recovery had, and three competent woodsmen made affidavits positively stating that they knew the lands, had themselves gone over them, and that the entire reasonable expense of a survey of the two forties as to which testimony [135] was introduced would not exceed $100. Tbis testimony seems to ns far more reasonable than that of the plaintiff’s witness, and evidently so impressed the clerk. We can discover no good reason for disturbing his conclusion. He was the taxing officer, and the function of the court was simply to review his conclusion, not to try the question de novo. State v. Wertzel, 84 Wis. 344, 54 N. W. 579. By the Court. — Judgment modified by reducing the same in the sum of $538.15, and, as so modified, affirmed, with costs to the appellant.