Burkhardt v. Elgee

66 N.W. 525, 93 Wis. 29, 1896 Wisc. LEXIS 4

• Court: Wisconsin Supreme Court
• Decided: April 14, 1896
• Status: Published

Opinions

The following opinion was filed March 10, 1896:

Winslow, J.

This is an action of trespass for entering the lands of the plaintiffs, and unlawfully, with hook and line, catching from the Willow river, a stream which flows through said lands, certain brook trout. The damages were laid at $100 in the complaint, but it appeared on the trial that the damages for the trespass were simply nominal, and that the brook trout caught were of the value of fifty cents only. Trial by jury was waived, and the entry and catching of the fish were admitted. The court found from the evidence, among other things, that the Willow river at the place in question was navigable for the purpose of driving logs and for small pleasure boats; that it had been stocked by the state, at great expense, and at the place in question, with trout fry, with the consent of the owners of the land in question. The court held that the right to fish in the stream belonged to the public, and that the owners of the land, by consenting to the stocking of the stream, had substantially dedicated the stream and the banks to the public for the purpose of fishing; whereupon the complaint was dismissed, and the plaintiffs appealed.

We are met on the threshold of the case with the fact that this judgment is not appealable. By ch._215, Laws of 1895, no appeal can be taken from a judgment where the amount involved, exclusive of costs, is less than $100, unless the trial judge shall certify that the case involves certain difficult or constitutional questions. It appears by the findings that the amount involved in this case, exclusive of costs, is but fifty cents, and there is no 'certificate of the trial judge such as the statute requires. It would be frivolous to hold that, because the ad danvnum clause of the complaint places the damages at $100, therefore the “ amount involved” is $100, when it affirmatively appears, without dispute, that in fact the damages were but fifty cents. We cannot, therefore, consider the questions raised, and which were so ably argued upou this appeal.

By the Oourt. — Appeal dismissed.

On a motion fór a rehearing it was contended on behalf of the appellants that, the title to land being in question, the “ amount involved ” in the action is the value of such title, and the damages claimed are merely an incident. Symonds v. Greene, 28 Fed. Rep. 834; Mississippi & M. R. Co. v. Ward, 2 Black, 485; Market Co. v. Hoffman, 101 U. S. 112; Whitman v. Hubbell, 30 Fed. Rep. 81; Ross v. Prentiss, 3 How. 771. Even if title to land had not been involved, the amount claimed in the complaint as damages is decisive-upon the question of jurisdiction of this court. Wilson v. Daniel, 3 Dallas, 401, 407; Barry v. Edmunds, 116 U S. 550, 560; Johnson v. Hannahan, 3 Strobh. 425; Kolb v. Bankhead, 18 Tex. 228; Knapp v. Banks, 2 How. 73; Hilton v. Dickinson, 108 U. S. 165. The qualification of this rule in Gorman v. Havird, 141 U. S. 206, applies only to cases where the plaintiff’s demand is clearly frivolous.