Gerbig v. Bell

Barnes, J. The defendant owned the S. W. \ of the FT. W. ¿ and the Fí. W. J of the S. W. £ of section 32. The — 159 — plaintiff owned the adjoining forties immediately west thereof in section 31. Defendant sold and conveyed the timber on thirteen parcels of land owned by him, including that on the two parcels above described, to one Blakeslee. The latter, while removing 'said timber, cut some trees on the land of the plaintiff. Judgment has been recovered against the defendant for such trespass. The defendant had the right to sell and convey the timber which he owned. If he is liable for the trespass committed by Blakeslee, it must be because he aided and abetted in the ■commission of it. The jury found that the defendant did not aid, abet, counsel, or advise Blakeslee to cut the timber to the west of the true boundary line. The court set this finding aside. The ‘evidence to sustain it appears to us to be not only ample, but practically uncontradicted. The plaintiff had caused a survey of the land to be made some time before this transaction took place, and had built a fence on the line of his survey, but not along its entire length. Blakeslee cut the timber to this line. The defendant testified that he never pointed out his west line to Blakeslee nor told him where it was; that he told him there was a fence on the west side which he supposed to be the line; that Blakeslee wanted defendant to show him the line, but he told him he would have to get a ■surveyor, which he did; that he did not tell Blakeslee the fence was the line and that he would stand by it; that he never pointed out to Blakeslee the timber he sold him; that he stayed with him while the line was being surveyed, and contributed to the cost because he wanted to know where the west boundary of his land was; that at no time did he point ■out to Blakeslee in any way, shape, or form the lines which would limit his operations; and that he never cut or removed ■any timber from the disputed strip himself. The testimony simply amounted to this: Defendant conveyed the timber on two government descriptions in section — 160 — 32 as well as on other lands. He told his Tendee that plaintiff had huilt a fence which he supposed formed the west, boundary line of said parcels, but he did not know, and that the purchaser should have the line surveyed and satisfy himself. Blakeslee, after he made the purchase, employed a surveyor, who found that the fence substantially formed the true-boundary line, and defendant was present when the survey was made and contributed to the expense thereof because he-wanted to know the correct boundary line of his land. Two-other parties besides Bell and Blakeslee also contributed to the expense. Each of the parties so contributing had a separate and distinct purpose in view, and that was to ascertain the correct boundary of his own property. We are unable to see how such a course of conduct could be construed as rendering the defendant liable as an aider and abettor of' Blakeslee in committing the trespass which he did commit. There is nothing to show that defendant attempted to influence the judgment of the surveyor in reference to his survey. He claimed on the trial that the line established was the true boundary line, but this he had a perfect right to do.. As owner of the land to the east of the disputed line he had a right to offer evidence as to the location'of the true line. Such evidence was competent and proper on the question as to-whether Blakeslee committed'a trespass. By offering it the defendant neither aided nor abetted the trespass committed by his vendee. The timber had then been cut several years. He had a right to participate in the cost of the survey because he was interested in knowing the location of his west boundary line. He could hardly be convicted of a trespass on this account. It was immaterial to the defendant where the line was located in so far as it affected the timber. That had already been sold by him, and the location, of the line could neither add to nor subtract from the amount which he had received therefor. If the surveyor was mistaken, and Blakeslee committed trespass by cutting to his line, it is dif — 161 — ficult to see how the defendant thereby became a wrongdoer, If he was a wrongdoer, then the other parties who shared in the cost of the survey with Blakeslee and the defendant were likewise trespassers and liable. The making of the survey did not constitute the trespass complained of. It was a perfectly lawful and an obviously necessary act. If it was not correct, those who relied on it, and thereby injured their neighbors, would become trespassers, but not those' who innocently participated in making it for their own information. The employment in good faith of the surveyor was not a trespass on the part of any one. It was Blakeslee’s legal duty, under the circumstances disclosed by the testimony, to have the line surveyed. Had he failed to do so, and cut on plaintiff’s land, he might well be held for a wilful trespass. Sec. 4269, Stats. (1898); Brown v. Bosworth, 58 Wis. 379, 17 N. W. 241; Underwood v. Paine L. Co. 79 Wis. 592, 48 N. W. 673. If Blakeslee had an unlawful purpose in view, it would not follow that the others who shared in the expense of the survey were liable if they acted innocently. In Richardson v. Emerson, 3 Wis. 319, 321, it is said: “Where several persons are engaged in the accomplishment of a lawful object, if one or more shall become a tortfeasor, even with a view to aid such purpose, the others, who neither direct nor countenance such tortious acts, are not liable.” We fail to see how any significance can be attached to the fact that the defendant sought to establish on the trial that no trespass had been committed on plaintiff’s land. The two defenses interposed were not repugnant. So long as they were not, the defendant had the right under the Code to rely on any defense that would defeat the plaintiff’s action. Sec. 2657, Stats. (1898); South Milwaukee B. H. Co. v. Harte, 95 Wis. 592, 70 N. W. 821; Roberts v. Decker, 120 Wis. 102, 97 N. W. 519; J. H. Clark Co. v. Rice, 127 Wis. 451, 457, 106 N. W. 231. He would not eommit a tort by so doing. It would be far-fetched to hold that, because the — 162 — defendant denied in his answer that any timber had been cut on the land of the plaintiff, and'so contended on the trial, he therefore aided and abetted in the commission of a trespass done thereon over four years before the answer was made. Judgment should have been rendered on the verdict for the defendant on the trespass issue. Some question has arisen as to the form of judgment which should be entered. The answer puts in issue the plaintiff’s title to the disputed strip. The plaintiff has prevailed on such issue. Should the judgment go in favor of the plaintiff, with nominal damages, because he has succeeded in establishing his title, or should it go for defendant because he did not commit any trespass ? The answer to this question determines which party should recover costs, and the costs recovered are more than twenty times the amount of the damages awarded. If a judgment for defendant dismissing the complaint would have the effect of depriving the plaintiff of the parcel of land in controversy, then it should not be entered, because it would be contrary to the finding of the jury. But we do not think it would have any such effect. The action is one to recover damages for a trespass for cutting and removing timber, not to establish title to real estate. .Whatever judgment is rendered in the action is final as to the rights of the parties as to the cause of action litigated. It would not necessarily be final as to any other or different cause of action between the parties. As to such a cause' of action it would be final only as to questions actually litigated. The ascertainment of what questions have been litigated in an action presents pure questions of fact which are not necessarily established by the pleadings and judgment, but which may be shown by the findings of the court or a referee, by the verdict, by the bill of exceptions, or by extrinsic evidence, as well as by the pleadings and judgment. The issue of title having been raised by the pleadings and having been litigated, and the jury having found in plaintiff’s favor thereon, such — 163 — finding is conclusive as to the rights of the parties. This is just as true under a judgment dismissing the complaint because no trespass was proven, as it would be if judgment went in plaintiff’s favor. In trials it frequently happens that the litigant who recovers judgment is defeated on certain issues that are tried. As to any issue that is tried and determined by the finding of a court or the verdict of a jury, the final judgment rendered sets the question at rest. In a subsequent action to try title to the land the court would inquire what issues were raised and tried in the trespass suit and how such issues were decided, and, as to such issues as were decided, the former action would be conclusive. The verdict rendered in the case before us would conclusively show that the plaintiff owned the disputed strip and that the defendant did not commit any trespass thereon. Grunert v. Spalding, 104 Wis. 193, 213, 80 N. W. 589, and cases there cited; Emmons v. Dowe, 2 Wis. 322; Murphey v. Weil, 92 Wis. 467, 66 N. W. 532; Morgan v. C., M. & St. P. R. Co. 83 Wis. 348, 53 N. W. 741; Fulton v. Pomeroy, 111 Wis. 663, 87 R. W. 831; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Moehlenpah v. Mayhew, 138 Wis. 561, 577, 119 R. W. 826. While a final judgment is conclusive as to issues arising on the pleadings which were or might have been litigated, it does not in itself necessarily determine what was litigated or how each particular question was decided. The printed case is not “an abridgment of the record so far as necessary to present the questions for decision” that ■are involved on the appeal, as required by Rule 6 of this •court. It is far from it. A case containing twenty pages might well present all of the record that should have been printed. The case contains 142 pages including the index. Under Rule 44 of this court the appellant is not entitled to any costs for printing such a ease. Griffiths v. Cretney, ante, p. 143, 126 N. W. 875; Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414; Sparks v. Wis. Cent. R. Co. 139 — 164 — Wis. 108, 120 N. W. 858; Steinberg v. Salzman, 139 Wis. 118, 120 N. W. 1005; Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N. W. 832; Herring v. E. I. Du Pont de Nemours P. Co. 139 Wis. 412, 121 N. W. 170; Keeley v. G. N. R. Co. 139 Wis. 448, 121 N. W. 167; Neale v. State, 138 Wis. 484, 120 N. W. 345; Roach v. Sanborn L. Co. 140 Wis. 435, 122 N. W. 1020. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to reinstate the answer of the jury to the third question in the special verdict and to render judgment on the verdict rendered by the jury, dismissing the complaint because the plaintiff failed to prove a cause of action in trespass. The clerk is directed not to tax any costs for printing the case.