#### Hungerford vs. Redford and another.

*Replevin for logs; evidence of title. Damages. Exceptions.*

1. In replevin for logs cut and removed by defendants from land to which the plaintiff claims title, proof that the plaintiff was in the actual pos. session and occupancy of the land at the time of such cutting and removal, would he sufficient to enable him to maintain the action, without any proof of a paper title, unless the defendants proved an adverse title thereto of a higher character than a mere possessory title.

2. But where the land was unoccupied when the logs were taken, plaintiff must showthat he was the *real*owner; and proof of a merely colora-ble title in him, as by a conveyance from a person whose title is not established, is not sufficient; since a judgment in his favor would not bar a recovery from defendants by the real owner.

3. In such a case plaintiff must trace his chain of title to the United States or the state, or to some one who is shown to have been the true owner.

4. If plaintiff had shown title in himself, the question whether defendants had cut the logs in good faith, believing themselves to have title to the land, should have .been submitted to the jury (there being evidence tending to that conclusion); and in case of an affirmative finding on that question, the measure of damages would be, the value of the *stumpage,*or in other words, the value of the properly when seized by the sheriff, less the value of the labor bestowed upon it by the defendants. *Single*». Schneider, 24 Wis., 299, as to that point, approved.

5. Exceptions should specifically call the attention of the court trying the cause to the portions of the charge complained of; and an exception “ to the whole charge ” is *held*insufficient in this case.

APPEAL from tbe Circuit Court for *Marathon*Countj.

Replevin, for logs cut and removed by defendants from plaintiffs unoccupied land. Tbe plaintiff attempted to prove title to tbe land through several conveyances, but did not trace it back-to any original source of title, nor show possession at any time in himself or any of bis grantors. He also gave proof that be bad notified tbe defendants of bis rights and forbidden their cutting any timber on tbe land, about the time they commenced cutting; and that be bad deposited with tbe clerk of tbe board of supervisors a sufficient amount to redeem *346from the tax' deed under which, the defendants claimed. There was also proof of the value of the stumpage, and of the logs at the place where they were seized by the sheriff.

The defendants relied upon a tax deed executed to one of them in 1867, upon a tax sale in‘1864, for the taxes of 1863, to which deed the plaintiff objected as illegal and void, because the notice of sale stated that the taxes were due for the year 1864, and because the county treasurer did not offer the lands for sale in the manner required by law, nor officially sign or certify the sale book, and there was no affidavit of the sale or of the posting of notices thereof to be found in his office.

The court charged the jury that the notice of sale for taxes must show affirmatively for what year the taxes were unpaid, and the record must show a compliance with the law, otherwise the deed would be void; and that, if they found for the plaintiff, they should assess the cash value of the logs at the place where they were seized by the sheriff. The defendants excepted generally to the whole charge.

Verdict for the plaintiff.

A motion for a new trial was denied, and judgment entered for a return of the property or the recovery of its value; from which defendants appealed.

*W. G.*Silverthorn, for appellants,

contended that the plaintiff had not shown title to the land, emanating from any sufficient source; but the defendants had shown possession under a tax deed, valid on its face, giving them a colorable title ; and that the damages were excessive, the rule adopted by the court being applicable only in cases of willful trespass, citing *Singh v.*Schneider, 24 Wis, 299.

*Gf. L. Park,*for respondent,

argued that the jury were the only proper judges of the question of ownership and right of possession of the property ; that in case the property could not be returned, the plaintiff was entitled to its value as it was when the action was commenced, citing 20 Ill., 219 ; that the defendants’ tax deed being void and they having been repeat*347edly forbidden, to cut timber on tbe land, and tbe money to redeem from tbe tax sale having been deposited and they notified thereof, they were to be regarded as willful trespassers; that when a return cannot be bad, tbe damages, must cover tbe value as well as the injury done by tbe taking, citing 4 Zab., 162; 8 Humph., 406; 3 Kent’s Com., 363 ; Sedgwick on Damages, 576; and that tbe exception to tbe charge was too general to avail tbe defendants on appeal, citing *Thrasher v. Tyack,*15 Wis., 256; *Tomlinson v. Wallace,*16 id., 224; *Morse v. Gilman,*18 id., 373; *Jenlcs v. The State,*17 id., 665.

Lyon, J.

Action to recover tbe possession of a quantity of pine logs, alleged to have been cut by tbe defendants on a certain tract of land belonging to tbe plaintiff, and by them removed therefrom. Tbe complaint is in tbe usual form. The answer is a general denial, and an averment that tbe land upon which tbe logs were cut, and from which they were removed, belongs to tbe defendants.

Tbe plaintiff recovered judgment in tbe circuit court, .from which tbe defendants have appealed.

I. It appears by tbe evidence that tbe land from which tbe logs were taken was unoccupied, and it was therefore necessary that the plaintiff should prove that be was tbe owner thereof before be could recover tbe logs.

Tbe owner of tbe land is tbe owner of tbe logs, and entitled to tbe possession of tbe same.

To prove bis title to tbe land, tbe plaintiff gave in evidence a conveyance thereof executed by Eli P. May and wife to Wm. B. Ogden, dated January'21st, 1857; also conveyances of tbe same land executed by Ogden to Elagg, by Elagg to Rumsey, and by Rumsey to tbe plaintiff. Tbe latter of these conveyances is dated August 17th, 1868. This is all of tbe testimony relating to plaintiff’s title to tbe land, and it is clearly insufficient. It fails entirely to show that May, or any other grantor in either of tbe above mentioned conveyances, bad any title to *348tbe land, and Pence fails to show that the .plaintiff has title thereto.

A merely colorable title in the plaintiff is not alone sufficient to entitle him to judgment in an action like this, where as in this case, the land is unoccupied. Had he been in the actual possession and occupancy of the land when the logs were cut, he could have maintained this action without making any proof whatever of a paper title, unless the defendants proved -an adverse title thereto, of a higher character than a mere possessory one. But the plaintiff was not in the actual possession of the land when the logs were cut (which was in winter of 1868-9); and he shows no title in himself to the land, except one which is merely colorable.

If the plaintiff is not the real owner of the land, and the defendants shall be compelled to pay the judgment which he recovered against them in the circuit court, what rule of law will prevent such owner from bringing an action against them for the same logs and recovering therein? No such rule has been contended for in this case, aád we are not aware that there is any such rule. The fact that a recovery by the holder of a merely colorable title is no bar to a recovery by the real owner, demonstrates that none but the real owner can recover.

Had the plaintiff proved that he derived his title from a government patent, or probably from a patent issued by the state, or, had he proved that he was in actual possession of the land when the logs were cut, he would, doubtless, have thereby made *prima fade*proof of ownership, and to defeat the action the *onus*would have been upon the defendants to show that the legal title was in some other person. But proof that some person, or any number of persons, none of whom are shown to have any title whatever to the land, have assumed to convey it to the plaintiff, is not sufficient of itself to raise the presumption that the plaintiff is the real owner. Such proof fails to make out a *prima fade*case for the plaintiff.

The objection that the plaintiff’s proofs in this behalf were *349insufficient, was made bj tbe counsel for tbe defendants, when tbe conveyances before mentioned were offered in evidence, and was practically overruled by tbe court, to wbicb ruling due exception was taken.

II. Tbe defendants claimed tbe land upon wbicb they cut tbe logs in controversy, by virtue of a tax deed in due form, executed by tbe proper officer to one of them. Tbe validity of tbis deed was denied by tbe plaintiff, wbo introduced testimony tending to prove certain irregularities in tbe proceedings preliminary to tbe execution thereof, wbicb, it was claimed, were fatal to tbe validity of tbe deed. All disputed questions of fact affecting tbe deed seem to bave been submitted to tbe jury under proper instructions.

III. Tbe court also instructed tbe jury tbat tbe measure of tbe value of tbe logs, if they found for tbe plaintiff, was tbe cash value of tbe same at tbe place where they were seized by tbe sheriff. When so seized tbe logs bad been banked by tbe defendants on Sandy Creek, at an expense of about two dollars per thousand feet. Tbe jury evidently found they were worth there three dollars per thousand; because there is a preponderance of proof tbat tbe quantity in question is 187,000 feet, and tbe jury assessed tbe value thereof at four hundred and eleven dollars. Tbe evidence shows tbat tbe logs in the tree, or, as tbe witnesses express, it, tbe stumpage was worth one dollar per thousand.

It is claimed by tbe defendants tbat tbe cutting and taking of these logs was not, in any correct sense, a willful trespass, but tbat they cut and removed tbe same, believing, in good faith, that they owned tbe land from wbicb tbe logs were taken, and' tbat tbe court erred in giving tbe rule of value as above stated

We are of tbe opinion tbat if tbe defendants, when they cut and removed tbe logs, honestly believed tbat they were tbe owners of tbe land from wbicb tbe same were taken, tbe rale laid down in *Single v.*Schneider, 24 Wis., 299, for assessing the value of tbe property in controversy in tbat case, is applicable. *350That is to say, the true yalue of these logs is the value of the stumpage, or, what is the same thing in this case, the true yalue thereof is their yalue when seized by the sheriff, less the amount which their value has been enhanced by the labor of the defendants.

It should be observed that in this case, as in that of *Single v. Schneidei',*the defendants gave an undertaking under the statute and retained the property.

There seems to be a conflict in the testimony as to whether the defendants took the logs in good faith; and, had the- plaintiff proved that he was the owner of the land from which they were taken, we think the question should have been submitted to the jury.

IV. It is objected on behalf of the plaintiff, that the excep-ion of the defendants to the instructions given to the jury is too general to be available on this appeal. Such exception is as follows: *“*To the whole of which charge the defendants, by their counsel, excepted. ’ ’ This objection is well taken. In *Bigelow v. The West Wisconsin R. R.*Co., (27 Wis., 478), it was said: “ This court has repeatedly held that it would not review the charge of the circuit judge unless his attention was specifically called to those portions complained of when the same was given, so that he might have an opportunity to modify or withdraw the objectionable portions, should he deem them incorrect." See also, *Nicks v. The Town of*Marshall, 24 Wis., 189 ; *Strohn v. The Detroit and Milwaukee R. R.*Co., 23 Wis., 126, and cases cited.

The judgment of the circuit court cannot, therefore, be reversed because of any error in the charge of the court to the jury; and'we have commented upon the charge, not because it can have any influence upon the decision of this appeal, but for the purpose of giving the parties and the court the benefit of our views upon a question which has been discussed in this court by the respective counsel, and which' will probably arise when the cause is again tried.

Because the plaintiff failed to establish his right to the pos*351session of the logs in controversy, by failing to prove that he owned the unoccupied land from which they were taken, there must he another trial.

*By the Court,*—Judgment reversed, and a *venire de novo*awarded.