History of Crawford and Richland counties, Wisconsin, Part 119

Author: Butterfield, Consul Willshire, 1824-1899. [from old catalog]; Union publishing company, Springfield, Ill., pub. [from old catalog]
Publication date: 1884
Publisher: Springfield, Ill., Union publishing company
Number of Pages: 1298

USA > Wisconsin > Richland County > History of Crawford and Richland counties, Wisconsin > Part 119
USA > Wisconsin > Crawford County > History of Crawford and Richland counties, Wisconsin > Part 119

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be paid so long as the dam shall be used by the defendants or their assigns, at the present height of water, estimated at six feet and five inches, unless a re-assessment of damages shall be made herein, commencing from the expira- tion of the lease. James Tuttle, foreman jurors." The verdict was received and allowed by the court and recorded. The defendants moved to have the verdict set aside, and for a new trial, which was overruled by the court. On May 4, 1870, the plaintiff made his election of the alternative verdicts to take the $800 gross damages. The defendants failed and neglected to pay the plaintiff the $800, or secure the same; whereupon the plaintiff asked for judgment of $800 against the defendants, which the court refused to grant. This question of whether the plaintiff was entitled to judg- ment was carried to the supreme court at the June term, 1871, and determined against the plaintiff. Up to this time the case had been managed by A. Durnford, and Cothren & Black for the plaintiff, and Eastland & East- land for the defendants; but at this time James HI. Miner took charge of the plaintiff's case, and managed it to final termination, assisted a portion of the time by M M. Cothren. On Ang. 14, 1872, the plaintiff served upon the defendants a written notice, reciting the sub- stance of the proceedings in the case and de- manded that the defendants reduce their dam, which they refused to do.

On Aug. 16, 1872, the plaintiff brought an action upon the verdict rendered in April, 1870, and demanded defendant's dam be abated or reduced, and a verdict was returned for the plaintiff and judgment and decree entered to the effeet, that in case the defendants failed to pay the plaintiff the $800 with interest and costs within sixty days, the sheriff should reduce the dam so that the water would not overflow the plaintiff's land. From this decree the defend- ants appealed to the supreme court, asking that the same be reversed and a new trial granted. The whole controversy in the case was in regard

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to the form and sufficiency of theverdict. The defense contended: "That the verdict on which the action was based, to be valid, must find all the issues in the case and settle all matters con- troverted. That the mill-dam Act provided that 'if it shall be alleged in the complaint that the dam is raised to an unreasonable height, the jury shall decide how much, if any, the dam shall be lowered, and shall state such decision as a part of their verdict.' That the complain- ant in the former action, alleged that the dam was raised to an unreasonable height, but the jury failed to find anything upon that point." "Under this verdict," continued the defense, "we find an insuperable difficulty in determin- ing the height of the water defendants have a right to maintain. Defendants contend that they have a right to keep the water up to the height it then was, though above the height estimated by the jury, while plaintiff contends that the water shall be reduced to an absolute standard of six feet and five inches. But if six feet five inches is fixed as the standard, then the verdict must also fix the place where the meas- urement is to be made, and fix it, not by infer- ence merely, but so as to be definite and une- quivocal; and this it utterly fails to do." In answer to the objection that the former verdict was based upon an estimated height of water of six feet five inches, the plaintiff's attorneys contended "that the plaintiff could take no ad- vantage thereof, since in the event of his bring- ing another action, the allegation and proof of a greater height of water would not be suthcient to maintain his action. He would also be obliged to allege and prove that the height had been raised above what it actually was at the time the former damage was estimated, and that he was injured thereby. And this is just what the plaintiff would be required to prove in a new case, if the height of the water in feet and inches had not been mentioned in the verdict. Plaintiff declares, in the election itself, that it is an election to take $800 for his damages, and what is stated about the six feet and five inches

can have no other meaning than to throw light upon the estimated height of water at the tinic the damage was estimated. In the event of the defendant's paying the $800, plaintiff would be estopped from claiming anything more, unless he could clearly show that the water had been actually raised upon his land by defendant's dam to a greater height than it was when the former damage was estimated." The whole gist of the contention will at once be seen from the sides taken by the parties. After a very warm contest, and lengthy argument, the su- preme court affirmed the judgment of the circuit court, deciding in favor of the plaintiff, Robert Akan.

The case of Jacob W. Lybrand ys. James and Santippa Ann Haney was at the fall term of circuit court in 1871. The prominence of the parties, the amount involved, and the elaborate opinion given by the supreme court when brought before that tribunal, renders the case important and of interest recalling the taxes and tax titles of earlier days. The case was managed by James II. Miner, attorney for plaintiff, with W. E. Carter as counsel; and Eastland & Eastland for defendants. Mr. Haney was the owner of large tracts of land in the southwestern part of the county, upon which he neglected to pay the taxes. The lands were sold year after year by the county for taxes. Mr. Lybrand purchased the lands at the tax sales. Mr. Haney failing to redeem the lands within three years after the respective sales, Mr. Lybrand obtained tax deeds of the lands, ten in all, upon nine forty acre tracts. The first deed was dated Aug. 11, 1865, and the last May 20, 1870. Before bringing the action to quit the title and fully obtain the lands, Mr. Lybrand proposed to Mr. Haney to ynit claim the lands to him upon his paying the tax, costs of sale, and one-half of the acerued interest. This offer was not accepted, and Mr. Lybrand brought this action, setting forth the facts of the non-payment of the taxes, that deeds had been issued to him, giving a copy of

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each deed, and asked a judgment that be be judicially declared the owner, and that James and Santippa Ann Haney be barred and fore- closed of all right and equity of redemption. The defendants demurred to the complaint upon several grounds; among others that as to the deeds of 1865 they were barred by the stat- ntes of limitations, and that the complaint did not stato facts sufficient to constitute a canse of action. The demurrer was argued before the circuit court, Judge Mills presiding, and over ruled. From this ruling the defendants ap- pealed to the supreme court. At the January term, 1872, the case was argued before the supreme court, by A. C. Eastland on the part of Mr. Haney, and James H. Miner for Mr. Ly- brand. The ruling of the circuit court was sus- tained; but the court went further and held that no cause of action could be based upon deeds issued more than three years before the time of bringing the action. By this ruling, Mr. Haney was relieved from depositing the amount of tax, interest, costs and charges due upon the lands, which he was required to do before he would be permitted to serve and file his answer to the complaint, so that the plaintiff could ac- cept and release the lands, or refuse and test the validity of the tax deeds, and take the lands. Mr. Haney made the deposit of something over $300. Mr. Lybrand accepted the money and released the lands, upon Mr. Haney's paying the costs, about $100, besides $50 in the supreme court.

About the only trial of any importance at the April term in 1872, was that of the State of Wisconsin rs. John and George Quacken- bush. Oscar F. Black appeared for the State, and James II. Miner for the defendants. John and George Quackenbush had been arrested in December, 1871, for stealing a large quantity of hops from Alpheus Smith, on Willow creek. Upon preliminary examination they were held to bail, and in default thereof, remanded to jail. They laid in jail all winter, waiting for their trial before the circuit court. They had

been troublesome guests for the sheriff, who found it necessary to chain them to the floor of the jail to prevent them from doing mischief. When the trial finally came off they were found guilty, but they came so near proving that the hops were of no value that the judge imposed only the light fine of $25. and astound- ed the bar and spectators by directing the sheriff to give the prisoners the limits of the county un- til the fine was paid.

The case of Jaquish es. the Town of Ithaca, appears upon the calendar for the October term of circuit court in 1872. It was an action to recover damages for injuries to the person and property, suffered by the plaintiff by reason of a defective bridge, parcel of a highway in Ithaca, the defendant town. Eastland & East- land, with Cothren & Lanyon, were attorneys for the town, and George C. Hazelton and (). B. Thomas appeared for Mr. Jagnish. It ap- pears that during the afternoon of March 8, 1871, the plaintiff attempted to drive a team of horses across the bridge in question, but the horses broke through or ran off the bridge into the water, and one of them was drowned, and the other soon after died from the injuries. The stream was usually very small, but at the time of the accident was so much swollen by rain and melting snow that the water ran over the bridge. The plaintiff claimed, and the tes- timony tended to prove, that in consequence of his exposure and exertion in endeavoring to rescue his horses, his health was seriously and permanently impaired. Therefore he brought this action for damages. A change of venue was taken to Vernon county. The most in- portant points that were argued in the trial were, as set by the defense : When a highway has suddenly become delicient or out of repair, through some action of the elements, the town is not liable for resulting injuries, without no- tice and time to repair the defect ; that when a party seeks to recover damages of another for an injury caused by the carelessness or I negligence of the agents or servants of the

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other, he must himself be entirely free from contributory negligence. That plaintiff knew the condition of the bridge, and acted carelessly and negligently in attempting to cross it. It was not denied that the bridge was out of re. pair when the accident happened, butit was claimed that it had suddenly become so but re- cently before the time, by reason of a freshet in the stream ; and that sufficient time had not elapsed thereafter, and before the accident, for the town authorities to repair it, or guard trav- elers against the danger. But there was evi- dence tending to prove that the town authori- ties had notice of the defect in the bridge. It was undisputed that the chairman of the board of supervisors of the town passed over the bridge on the same afternoon, and before the accident to the plaintiff, and saw that one end of some of the plank was loosened from the stringers. Upon this point the court held that notice of the defect to that officer, who was one of a board charged by law with the care and superintendence of the highways and bridges in the town, was notice to the town. There was considerable evidence tending to prove that the plaintiff was guilty of negligence which contributed directly to the injury; but still there was other evidence to prove that he ex- ereised reasonable care to avoid the injury. The jury, after a full hearing found for the plaintiff, and assessed his damages at $700. The defend- ant then moved for a new trial, which motion was overruled. The defendant appealed to the supreme court for new trial, where the judy- ment of the circuit court was affirmed. One of the reasons urged in the higher court why a new trial should be granted, was that the dam- ages were excessive ; that except about $125, they were merely speculative. Upon this point the supreme court's opinion was as fol- lows : "The testimony tends very strongly to show that the exertion by the plaintiff in rescu- ing his team, his exposure to the elements, and his agitation, all the direct result of the defeet in the bridge, produced epilepsy, which disease

was developed soon after the accident, and from which the plaintiff still suffers. The probability is that he will never recover. He describes himself as a wreck both in mind and body, and the testimony of the physicians is that the disease usually terminates in paralysis and mental imbecility or total idiocy. It is probable that about $500 of the damages were awarded for personal injuries. If the jury in the lower court found (as we presume they did find) that the epilepsy with which the plaintiff has been, and still is afflicted, was and is the result of the accident, the damages awarded are very moderate. Indeed, it would seem that the plaintiff and not the defendant is the party who may justly complain of the award."

The case of F. S. Hall vs. Aschel Savage, tried at the April term of court in 1873, evoked considerable interest, especially among the farmers. Mr. Savage lived in the town of Syl- van. It seems he sold a yoke of oxen to F. S. HIall, the plaintiff, and took $10 to bind the bargain, agreeing to deliver the oxen at Viola, at a specified time, three or four weeks distant. Shortly after this bargain was made, one of the oxen was taken sick. Mr. Savage took care of and tried to cure it, and did partially recover. At the appointed time, however, he took the oxen to Viola and delivered them to the plain- tiff, receiving therefor the amount agreed upon. In a few days the ox died. Mr. Hall then se- enred the services of Cothren & Black, as attor- neys, and commenced an action to recover the amount paid for the ox. James II. Miner was retained as defendant's. attorney. The point involved was whether the payment of the $10 so far completed the sale that any loss there- after would fall upon the party buying or upon the one who sold. The case was first tried be- fore Justice A. L. Wilson, of Richland Centre, where it was decided in favor of the plaintiff, he recovering a judgment for the amount paid for the ox. Mr. Savage appealed the case to circuit court, where it came to final trial at the April term, 1873. After

D. G. James

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a sharp contest on both sides, the decis- ion of the justice's court was reversed, and judg- ment was rendered for the defendant.

At the April term of court, 1875, the case of State vs. Charles Holbrook and Buchanan Nieks was tried. The whole northern part of the county were interested in this case, although the case itself involved but little. It seems that the boys and young men, in the vicinity of Woodstock, had got into the habit of having a "good time," as it is expressed, at church, Sunday school, and other meetings of like na- ture. Their fun was not vicious, but provoking, such as throwing paper wads, laughing and carrying on generally. This was in vogue there for several years until it became intoler- able, and then steps were taken to put an "ef- fectual stop" to it. The first case was brought in December, 1874, against Charles Holbrook, Buchanan Nicks, Abner Hammond, Luther Waldsmith, Joseph Orr, O. M. Neff, and Lymar Clark, before Alden Haseltine, justice of the peace. James Lewis appeared for the prosecu .- tion and James H. Miner, for the defense. The trial was a long one, lasting four days, and. was attended by a very large concourse of peo- ple. A large number of witnesses were exam- ined. It seems that all of the defendant> were dismissed except the first two, and these were found guilty, the fines and costs amount- ing to 886. Judge Miner appealed the case to the circuit court, and again appeared for the de- fense. Oscar F. Black prosecuted the case in circuit court. The case was disposed of at the April term, 1875. The boys had been arrested under the provisions of section 1, chapter 145, laws of 1866, which is as follows:

"Every person who shall, at any time, will- fully interrupt or molest any assembly of peo- ple met for the worship of God, or any member thereof, or persons when meeting or met to- gether for the performance of any duties en- joined on or appertaining to them as members of any religious society, or any wedding party, or other company or assembly of peaceable citi-

zens, or for the recitation or performance of oral instruction in vocal music, within the pale of such meeting or out of it, shall be pun- ished by fine not exceeding $20 nor less than $5."

Judge Mills, in his charge to the jury, defined what the law contemplates as "willfully molest- ing public worship, etc." The following quo- tation from the charge will show his interpre- tation of the law:

"It cannot be regarded as a molestation or in- terruption in view of the above law, for a per- son to leave his seat in a quiet and orderly manner, go out, and return again. But bois- trous and noisy demonstrations with tongue or feet, such as every reasonable person should know would interrupt and molest the exercises of the meeting, would render the defendent liable to the penalty of the law, if guilty of such conduct. Gestures and grimaces calen- lated to attract the attention of and disturb the audience would be such an interruption as is contemplated by the law. All peaceable and lawful assemblies, equally with religious socie- eties, are under protection of the law.

"It is your business to determine whether the evidence shows such conduct on the part of the accused or the contrary.

"I do not think the evidence against Buchar :- an Nicks sufficient to go before the jury."

The jury found Holbrook guilty, and he was fined $10. The other defendant was discharged.

The case of State of Wisconsin rs. N. II. Austin, upon the charge of perjury, was the most important case tried at the October term in 1875. N. H. Austin was a money lender, a man about fifty years of age, and a former resi- dent of Richland Centre. Ile came here from Ironton, remained for a number of years, and in 1873 returned to the place of his former resi- dence. During the summer of 1872, while in Richland Centre, he made one loan and a trade with a Mrs. Frank, and secured the two notes which were given, by a mortgage on a farm. When the time expired, he commenced fore

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closure proceedings. She set usury as a de- fense, and succeeded in defeating Austin A short time afterward, Austin was indicted for perjury, and upon a change of venne the case was brought to Richland county for trial. Jolm Barker, district attorney for Sauk county, and J. W. Lusk, prosecuted the case; and Oscar F. Black and W. E. Carter appeared for the defend ant. The indictment or complaint charged that the defendant was guilty of perjury in swear- ing that there was no nsury taken for a loan made by him to Mrs. Frank in September, 1872. Austin claimed that he loaned Mrs. Frank $56, July 8, 1872; that she also bought a hop press in September, 1872, for which she gave another note for $60. The Franks claimed that the note given July 8, was for the hop press, and the one in September for the loan. In these statements laid the gist of this action. Both sides swore to their statements. Eighty wit- nesses were examined. Hon. Alva Stewart, circuit judge of the circuit to which Sauk coun- ty is attached, and most of the members of the Sank county bar appeared as witnesses. The de- fense relied upon proving the truth of Austin's statements. It was shown that the hop machine was patented by Mr. Brockway, of Richland Centre; that the first that he had manufactured was not completed until the 28th of August, 1872; that the regular price of them was $60, conforming exactly with the note given in Sep- tember, 1872. Therefore it could not have been delivered on the 8th day of July, because it was not in existence at that time. The case was bitterly contested on both sides. The jury returned a verdiet of "not guilty."

One of the amusing little ineidents of the trial was: The counsel for the defense had proved that Austin had held the offices of justice of the peace and assessor of his town for many years ; that he was a member of the Methodist Church, and an earnest exhorter. This was to give the defendant standing be- fore the jury. When they came to the closing arguments, J. W, Lusk, as fine an appearing

man as ever addressed any jury, in answer to the charge of counsel for the defendant, that the prosecution was malicious, in getting such distinguished lawyers, said, stooping down toward the defendant, "I have no enmity nor the slightest ill feeling against Austin," who was a little, shrimped up old man, "but I could earnestly say, may the Lord have mercy on his soul !" "Hold on ! Mr. Lusk," exclaimed Judge Mills, from the bench, in his fine, screechy voice, "if Austin is an exhorter he had ought to answer, 'Amen !""

In April, 1876, the case of C. Cooper & Co. vs. F. G. and T. C. Rodolf, was tried. It at- tracted a good deal of interest, both on account of its being warmly contested, and because it involved a nice point of law. The plaintiffs were engaged in manufacturing, or at least, handling saw-mill machinery. They sent an agent to the defendant to sell their goods. Messrs Rodolf contracted for a saw-mill out- fit with this agent. The contract, after setting forth the style and size of the different pieees of machinery, read, "and also a carriage twenty-four or thirty feet in length." The design was that the agent should learn which was wanted and then scratch out the other; but this was neglected in this case. In due time the goods arrived, and the "carriage" was found to be twenty-four feet in length. Messrs. Rodolf resisted payment for the goods, and when action was brought, set up among other points for de- fense, that the contract had not been fulfilled. The question then was: In a contract of this character, which of the parties had the right of choice. After a full hearing, the court held that the party who was first to act, or, in other words, the party who was to make the first move toward fulfilling the contract, had the right to choose, where the contract contained an alternative clan e. Therefore the plaintiffs recovered.

The trial of the case of State of Wisconsin vs. Hugh Boyle, for assault with intent to kill, excited a good deal of interest at the October

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HISTORY OF RICHLAND COUNTY.

term of circuit court in 1876. It involved several very nice questions of law and fact. Hugh Boyle had been upon a spree for several lays at Lone Roek, and when in this condition he was a very violent man. He had eaten noth- ing for almost two days. On the evening of the second day, he was sitting in a saloon be- side Andrew Campbell, when suddenly he sprang to his feet, and, without any provoca- tion, drew a revolver and fired at Campbell,

, exclaiming, "I'll blow you through!" Ile was soon secured, and this action was brought in the name of the State, charging him with an as- sault with intent to kill. The faet of assault was very evident, but the question was raised by the defense whether drunkenness excused it, and whether a drunken man could form an in- tent to kill. The defense did not claim that drunkenness excused the assault, but it was claimed that drunkenness did excuse that class of erimes where there must be not only a general intent but a specifie intent to do the criminal act. In the course of trial it was argued upon this point, that the mind must be capable of forming the intent, and if Boyle was so drunk as to be incapable of entertaining the specific intent to kill, although he intended to injure, the crime of assault with intent to kill was not made out. That men are punished either according to the gravity of the intent combined with the act, or according to the gravity of the act combined with the intent, and, that a small act with a grave intent con- stitutes a great erime, or a great act with a small intent constitutes a grave erime. That, further, as the act of killing did not take place, the prisoner could only be punished for his in- tention, which he was too drunk to entertain. The attorneys interested in the case were E. C. Wulfing, James Lewis, James H. Miner and W. E. Carter for the prosecution, and Eastland & Son and O. F. Black for the defendant. After a full hearing the jury returned a verdict of "guilty of assault" only. The judge fined Boyle $100, but instructed the sheriff not to col-

lect the same in case it would embarrass the defendant!

At the same term of court a large number of the cases of farmers against the railroad com- pany, upon appeal from the damages allowed by the commissioners appointed to appraise the lands, appear on record. The major portion, if not all, of these cases were compromised.

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History of Crawford and Richland counties, Wisconsin, Part 119

Author: Butterfield, Consul Willshire, 1824-1899. [from old catalog]; Union publishing company, Springfield, Ill., pub. [from old catalog] Publication date: 1884 Publisher: Springfield, Ill., Union publishing company Number of Pages: 1298

Author: Butterfield, Consul Willshire, 1824-1899. [from old catalog]; Union publishing company, Springfield, Ill., pub. [from old catalog]
Publication date: 1884
Publisher: Springfield, Ill., Union publishing company
Number of Pages: 1298