Gerbig v. Bell, 143 Wis. 157.

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 N. W. 831; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Moehlenpah v. Mayhew, 138 Wis. 561, 577, 119 N. 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 case. 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

Gerbig v. Bell, 143 Wis. 157.

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.

KERWIN, J. (dissenting). Error is assigned in the charge, in allowing costs to plaintiff and in changing the answers to questions Nos. 2 and 3 of the special verdict. The jury found:

"(2) Did the plaintiff by his conduct and by the erection of the fence, as shown by the testimony, on the easterly side of his land, lead the parties cutting the timber to believe and rely upon the same as the true boundary line between the parties hereto? A. Yes.

"(3) Did the defendant, Bell, aid, abet, counsel, or advise Blakeslee to cut the timber to the west of the true boundary line between the lands of these parties? A. No."

The court changed the answer to question No. 2 from "Yes" to "No," and the answer to question No. 3 from "No" to "Yes." The majority opinion is based upon the propositions that the answers to questions Nos. 2 and 3 were well supported by the evidence and that it was error to change them, and that upon the record the defendant was entitled to It is settled by the verdict that the disputed tract where the timber was cut belonged to the plaintiff, and that question is not contested here. In my opinion, upon the

recover.

Gerbig v. Bell, 143 Wis. 157.

undisputed evidence the court below was warranted in changing the answers to questions 2 and 3 of the verdict. The following evidence is undisputed: In 1894 Patterson made a survey for plaintiff, and plaintiff constructed a fence, to accommodate his cattle, of two or three wires attached to trees and some posts and not straight, upon the Patterson line, at some points on one side and at others on the other side of the line between sections 31 and 32, but not the whole length, there being a gap of something like forty rods; that plaintiff always claimed that this fence was not on the line and at some points cut timber and occupied the land east of it; that defendant, Bell, knew this when he sold the timber in question to Blakeslee, and, after the sale to Blakeslee, defendant, Blakeslee, Stickney, Moe, and Biers joined in a survey, each paying one fifth of the expense, for the purpose of determining the line; that the plaintiff also after the sale of the timber to Blakeslee procured a survey and established what is known in this case as the Keach line and which the jury found to be the true line between sections 31 and 32; and that this line brings the timber cut upon the land of plaintiff and east of the Patterson line. In speaking of the sale of the timber to Blakeslee defendant testified:

"He asked me where the line was, and I told him there was a fence on the west side. . . . I told him that that was supposed to be the line. I told him the farm was fenced except around this government forty, the southwest quarter of the southwest quarter of 32."

Defendant further testified that at the time he made the contract with Blakeslee he told him there was a fence on the plaintiff's east line, but told him he did not know it was on the line; that when he sold to Blakeslee he claimed to the fence and claimed it up to the time of trial, to the line as surveyed by Patterson. When defendant bought his land plaintiff had a fence on part of the line, but was cultivating land east of it. Defendant testified that plaintiff

Gerbig v. Bell, 143 Wis. 157.

never told him before the surveys of Kennedy and Barney where his line was. The Kennedy and Barney survey was after the timber was cut. Defendant testified that he relied upon the Patterson survey as his line. Defendant's land adjoining plaintiff's land had never been inclosed. Before defendant entered into the contract with Blakeslee he went upon the land with him and told Blakeslee there would have to be a survey for the purpose of freshly determining where the several lines stood at the time. Defendant and Blakeslee had a survey made before the timber was cut which adopted the Patterson line. From an examination of the evidence I am convinced that the court below was right in changing the answers to questions 2 and 3.

The second question relates to estoppel on the part of the plaintiff by his conduct. But the evidence establishes without dispute that the defendant or Blakeslee did not rely upon the fence or the conduct of plaintiff. The line was in dispute and known to all parties to be in dispute. Defendant and Blakeslee obtained a survey and stood upon it. Plaintiff also procured a survey and insisted upon it as the true line and the jury held with plaintiff. There is no evidence that defendant or Blakeslee was misled by any act of plaintiff. There is no question of estoppel in the case; the defendant in no way changed his position on account of any conduct of the plaintiff. Defendant acted upon his own investigation and knowledge thus obtained. Under such circumstances there can be no estoppel. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Heinselman v. Hunsicker, 103 Wis. 12, 79 N. W. 23; Fox River F. & P. Co. v. Kelley, 70 Wis. 287, 35 N. W. 744.

Respecting the third question submitted to the jury, I think the evidence is undisputed that the defendant did aid, abet, counsel, or advise Blakeslee to cut timber west of the true boundary line between the lands of the parties. We need not repeat the undisputed evidence on this point. It is

Gerbig v. Bell, 143 Wis. 157.

clearly, in my opinion, an authorization from defendant to cut and remove the timber up to the Patterson line. The position that the Patterson survey marked the true line was asserted and maintained by defendant from the time of the sale to time of trial, and during the trial, and as a defense defendant claimed title by adverse possession to the disputed tract. The defendant sold the timber to Blakeslee, went upon the land with Blakeslee, and put him in possession of the disputed strip for the purpose of cutting and removing the timber. He asserted that in his opinion the Patterson survey was correct. He paid part of the expense of a survey to establish that line as the one forming the west boundary of the disputed strip. He acted upon that boundary and sanctioned the removal of the timber up to it. He continually asserted his ownership at all times up to the rendition of the verdict on trial below in this case.

I see no escape from the conclusion upon the undisputed evidence that the defendant aided, abetted, encouraged, or directed the perpetration of the trespass, and therefore the court below was right in changing the answer of the jury to the third question of the special verdict and ordering judgment for the plaintiff. McCloskey v. Powell, 123 Pa. St. 62, 16 Atl. 420; Northern T. Co. v. Palmer, 171 Ill. 383, 49 N. E. 553; Donovan v. Consolidated C. Co. 88 Ill. App. 589; Hamilton v. Hunt, 14 Ill. 472; McMannus v. Lee, 43 Mo. 206; Clark v. Bales, 15 Ark. 452; Bruch v. Caster, 32 N. J. Law, 554; Judson v. Cook, 11 Barb. 642; Shepherd v. McQuilkin, 2 W. Va. 90; Deal v. Bogue, 20 Pa. St. 228. In Donovan v. Consolidated C. Co. 88 Ill. App. 589, at page 597 the court said:

"One who in any manner indicates his desire that an act be done may be said to request it, and one who does anything in furtherance of an act may be said to aid or abet it."

There was no error in the portion of the charge excepted to or in awarding costs to plaintiff.