the name of the owner if known; and the said treasurer and clerk shall each record such statement in their respective offices." There can be put one possible purpose of requiring this statement to be recorded in the clerk's office. Upon him is thrust the duty of making out redemption receipts. To him the owner of the land applies when he desires to exercise his right of redemption. In his office, search is made to ascertain if lands have been sold, and the amount due for delinquent taxes. In most, if not all, counties a tax abstract is kept by the county clerk. That abstract can only be made from the statement received by him from the county treasurer. The opinion says that the filing of this statement with the county clerk "is only to a limited extent, if at all, for the benefit of the owner of the property," and the conclusion is "that the requirement that the statement be filed is directory, and not mandatory." If the statute is directory merely, then the treasurer may exercise his pleasure in filing it. He cannot be compelled to file it. If he fails to do so, I have been greatly at loss to discover how the clerk is ever going to be able to make up an authentic record in his office. I have an absolute right to redeem my lands after sale. The law requires me to make my application to the county clerk. Section 1165. I go to his office, and am informed that he has no record of the sale. I have inspected the record in the treasurer's office as suggested in the opinion, and find my land has been duly sold. The officer charged with the duty of giving me the documents that clear my title of the lien of the tax is powerless to act. His right to act has no basis unless it be upon a record made up as the law requires. Section 1167 requires him to enter on the sales list kept by him, and which he can make up only from the statement filed with him by the treasurer, certain facts relative to the redemption. How is it possible for him to comply with the law in this regard if he has no such list? How can he make an authentic sales list if the statement mentioned by section 1141 is not filed? Is it true that these requirements are only to a limited extent for the benefit of the land owner? My idea is that it is immensely for his benefit, and that the requirement is one of the necessary steps in the general plan, which cannot be omitted without leading to unjust, not to say absurd, results. In Iverslie v. Spaulding, 32 Wis. 394, this court held that the object of the provisions of section 1141 was to enable persons to ascertain whether the law had been complied with, and that the files and records are the only evidence which can be admitted to show the facts. In the case at bar, the trial court affirmatively found that the county treasurer did not, after the sale, file in the county clerk's office a list of the lands sold. Such finding leaves subsequent proceedings without any basis to rest upon. The statute is mandatory because it provides a vital link in the 91 N W.-15

chain of tax proceedings. The land owner, more than any other, is interested in having the statute complied with. A failure to comply with it, in my judgment, vitiates subsequent proceedings, and renders the tax deed void.

LA CROSSE BROWN HARVESTER CO. v.

GODDARD.

(Supreme Court of Wisconsin. May 19, 1902.) CORPORATIONS-ASSESSMENTS ON STOCK

COMPLAINT-SUFFICIENCY.

1. Rev. St. 1898, § 1773, relative to manufacturing and other corporations, provides that no corporation shall transact business with any other than its members until at least onehalf of its capital stock shall have been duly subscribed and 20 per cent. paid in. Held, in an action by a corporation against a stockholder to recover an assessment, that a complaint alleging that before any assessment was made one-half of the capital had been subscribed and 20 per cent. paid in was sufficient, and an objection that it failed to state when the stock was subscribed and 20 per cent. paid in was untenable.

2. Rev. St. 1898, § 1773, provides that no manufacturing corporation shall transact business with any others than its members until one-half of its capital stock shall have been dulv subscribed and 20 per cent. thereof actually paid in. Section 1753, as amended by Laws 1899. c. 193, authorizes stock to be issued in consideration of money, labor, or property estimated at its true money value. Held to authorize the 20 per cent. to be paid for in property or labor as well as in cash.

3. A complaint in an action by a corporation against a stockholder to recover an assessment alleging tuat the directors had made the "three several calls or assessments pursuant to the by-laws of said company and pursuant to the power and authority in them vested," and for the purpose of meeting "the needs of said corporation," and that the defendant had due and personal service and notice of the said calls or assessments so required, was not objectionable as failing to allege that the assessments were made and notice given pursuant to the by-laws.

4. A complaint in an action by a corporation against a stockholder to recover an assessment on stock alleging that the per cent. named was assessed on each and every share, was not objectionable as not alleging that the assessments were equal and uniform.

Appeal from circuit court, La Crosse county; J. J. Fruit, Judge.

Action by the La Crosse Brown Harvester Company against Hiram Goddard. From an order overruling a demurrer, defendant appeals. Affirmed.

Morris & Hartwell, for appellant. Graves & Mahoney and Higbee & Burns, for respondent.

CASSODAY, C. J. This is an appeal from an order overruling a demurrer to the complaint in an action to recover $250, the amount of the second and third assessments on 10 shares of the capital stock of $100 each, subscribed by the defendant in the plaintiff corporation. The complaint alleges, in effect, that August 18, 1897, the defendant and oth

ers associated to manufacture a patent machine known as "Brown Binder," and subscribed to an agreement whereby they respectively promised to pay for the number of shares set opposite their respective names, at the par value of $100 per share, in such corporation to be thereafter organized, such corperation to have 2,000 shares of $100 each; that 1,000 shares were to be issued to the owners of the patent, who were, in consideration therefor, to assign the patent to the corporation, and the same were to remain nonassessable, and to be issued as fast as assessable stock should be subscribed; that the other 1,000 shares were to issue to subscribers to be paid for in cash, upon assessments from time to time as needed and required, as therein provided; that additional and assessable stock might be authorized in cash not less than par; that there was to be no change in the binder without the consent of the inventor, but all improvements were to belong to the corporation; that subscribers were not to be liable until, on investigation, the patent was found to cover the machine patented, and not an infringement of any other patent; that the board of directors were to be elected by a two-thirds vote; that the owners of the patent agreed to accept 9 shares of stock for every 10 shares subscribed, until 1,000 shares of assessable stock should be issued; that the defendant, at the time of signing such agreement, subscribed for 10 shares of stock of $100 each in the corporation to be thereafter organized; that December 9, 1897, the plaintiff was incorporated by the defendant and others, and that verified articles of incorporation were duly recorded in the registrar's office, December 9, 1897, and filed in the office of the secretary of state, December 16, 1897; that January 5, 1898, the corporation was organized, and the defendant participated in the election of officers, and was elected as one of the directors; that more than one-half of the capital stock had been duly subscribed, and 20 per cent. of the par value thereof actually paid in "in money and property estimated at its true money value"; that the investigation mentioned had been had, and the report thereof accepted, ratified, and approved at a general meeting of the subscribers, at which the defendant was present and participated; that thereafter, and before any assessment was made upon the capital stock subscribed, the owners of the patent assigned the same to the corporation, with all rights and privileges under the same, together with all patterns and machines, all of which became and is the property of the plaintiff; that, relying upon such subscription of the defendant and others, the plaintiff had expended money and incurred liabilities in the construction and introduction of the Brown binder to the amount of $5,000; that pursuant to the bylaws of the plaintiff, and the power vested in them, the directors had made three several calls or assessments upon the subscribers to

the capital stock for the purpose of meeting the needs of the corporation, the first of which had been duly paid by the defendant; that January 6, 1900, the directors duly made and voted a second assessment of 10 per cent., or $10, on every share so subscribed, and upon the subscribers thereto, to be paid January 25, 1900, and that the defendant had due and personal notice thereof January 15, 1900; that March 6, 1900, the directors duly made and voted a third assessment of 15 per cent., or $15, on every share of stock so subscribed, and upon the subscribers thereto, to be paid April 15, 1900; and that the defendant had due and personal notice thereof April 5, 1900; that such two last calls or assessments amounted to $250; that, although the same became due and payable as stated, yet the defendant had not performed his agreement, and had wholly omitted. neglected, and refused to pay any portion of either of such assessments, and that the defendant is justly indebted to the plaintiff on account thereof in the sum of $250, with interest upon each assessment from the time it became due; and demanded judgment accordingly. In support of the demurrer counsel seem to rely on Mining Co. v. Sherman. 74 Wis. 226, 42 N. W. 226, 4 L. R. A. 232, in which it was held that "in an action to recover a call or assessment the complaint must aver compliance with section 1773, Rev. St. 1898," wherein it is declared that "no such corporation shall transact business with any others than its members until at least one-half of its capital stock shall have been duly subscribed, and at least twenty per centum thereof actually paid in." Cement Co.

v. Schoknecht, 108 Wis. 464, 84 N. W. 838. But the complaint does allege "that more than one-half of the capital stock of said corporation has been duly subscribed and twenty per cent. of the par value thereof actually paid in, in money and in property estimated at its true money value." In fact, the complaint goes still further, and alleges, in effect, that before any assessment was made upon the capital stock subscribed one-half of such capital stock had been subscribed by the owners of the patent; and that they had paid into the corporation the whole thereof by assigning the patent to the corporation. The contention that the complaint fails to allege when one-half of the capital stock was subscribed and when the 20 per centum thereof was actually paid in is without foundation.

2. Counsel further contends that the complaint "is fatally defective in not alleging that the twenty per centum was paid in cash." But the statute expressly authorized such stock to be issued "in consideration of money or labor or property estimated at its true money value." Section 1753, Rev. St. 1898. as amended by chapter 193, Laws 1899. The two sections of the statutes cited must, necessarily, be construed together, and, when so construed, they authorize stock to be issued for property or labor as well as cash. This

has frequently been sanctioned by this court. Whitehill v. Jacobs, 75 Wis. 474, 44 N. W. 630; National Bank of Merrill v. Illinois & W. Lumber Co., 101 Wis. 247, 77 N. W. 185. See, also, Cold Storage Co. v. Dexter, 99 Wis. 229, 230, 74 N. W. 976, 40 L. R. A. 837; Spaulding v. Town Site Co., 106 Wis. 489, 81 N. W. 1064; Van Cleve v. Berkey, 143 Mo. 109, 44 S. W. 743, 42 L. R. A. 593.

3. It is further contended that the complaint is defective in failing to allege that such assessments were made and notice thereof given as prescribed by the by-laws of the plaintiff corporation. In support of such contention counsel cite section 1754, Rev. St. 1898, and Mining Co. v. King, 94 Wis. 439, 69 N. W. 181, 36 L. R. A. 51; Town Site Co. v. Bishop, 103 Wis. 492, 79 N. W. 785, 45 L. R. A. 174. But the complaint does expressly allege that the directors of the plaintiff made the "three several calls or assessments pursuant to the by-laws of said company, and pursuant to the power and authority in them vested," and for the purpose of meeting "the needs of said corporation"; and that the defendant had due and personal service and notice of the said calls or assessments so required.

4. Counsel contends that there is a failure to allege in the complaint that "the assessments or calls were equal and uniform upon all subscribers to the capital stock." But the complaint alleges in each instance that the per cent. named was so assessed upon each and every share. We must hold that the complaint states a good cause of action.

The order of the circuit court is affirmed.

GILMAN v. BROWN.

(Supreme Court of Wisconsin. May 19, 1902.) TRESPASS-PLEADING-ISSUES-EVIDENCE

DAMAGES-ADVERSE POSSESSION.

1. Where, in an action for trespassing on plaintiff's lots and breaking down plaintiff's fence, defendant claimed that the fence destroyed was not on the true boundary line, and plaintiff claimed under deeds of the lots, the true boundary was a proper subject of inquiry.

2. Undisputed evidence that the fence bounding plaintiff's lots had been built while the original survey stakes were standing, and that later it had been observed to correspond with at least one of the stakes, sufficiently showed the fence to be on the true line as run and marked on the original survey, and was not overcome by evidence of measurements not shown to have started with nor to have followed any points known to have been fixed on the survey.

3. Rev. St. 1898, § 4214, provides that adverse possession by one claiming title not founded on a written instrument exists, when the land has been protected by a substantial inclosure or is usually cultivated, and by section 1225, 20 years' adverse possession bars an action to recover the land. Held, that actual occupation, inclosure, and cultivation under claim of ownership, continuous in plaintiff and his predecessors for 20 years, barred any re

covery.

4. Where a complaint in trespass asserted title by deed and also by adverse possession,

after issue joined defendant could not demand that plaintiff elect as to how he would prove his ownership, or object to any evidence.

5. An allegation in a pleading of adverse possession of land for 20 years was not inconsistent with a claim of ownership by deed.

6. Where defendant in trespass destroyed shade trees, plaintiff could recover for their val ue to the real estate for the purpose of occupancy.

7. Where defendant knew plaintiff claimed the land trespassed on by him, and there was evidence tending to show wantonness, exemp lary damages were warranted.

8. Where in trespass the case justified punitory damages, proof of defendant's financial condition was admissible.

Appeal from circuit court, Buffalo county; E. W. Helms, Judge.

Trespass by Charles W. Gilman against Orlando Brown. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for trespass quare clausum. The complaint alleged that the defendant willfully, maliciously, and wantonly broke and entered the plaintiff's close, describing it as lots Nos. 1, 2, and 3, in block No. 2, range No. 2 N., range No. 2 W., according to the original village plat of Mondovi. It described the damage with much detail in the way of destruction of fence, shade trees, and shrubberies, and the effect of such damage upon plaintiff's use thereof in connection with his residence thereon as a homestead. The complaint further alleged that the plaintiff, on the day of the trespass, was, and since has been, and now is, the owner and in possession of the described premises, and that the plaintiff and his ancestors in title had been the owners of, and in continuous, adverse, open, and notorious possession and enjoy. ment of, the premises up to the fence destroyed by defendant, under claim of title, exclusive of any other right, ever since September 13, 1870. The answer, while containing a general denial, proceeded to make allegations obviously limiting and defining that denial, consisting of substantially an admission that plaintiff was the owner of the lots described in the complaint, and an allegation that defendant's wife, for whom he acted, was the owner of lands immediately westward of those lots, and that the controversy grew out of a dispute as to whether the fence destroyed was on the west line of plaintiff's premises, or was some distance west thereof, and that his acts in removing the fence, etc., were done because such fence was on his wife's premises. At the trial the plaintiff proved without dispute that the village plat of Mondovi was made in 1858; that it was marked upon the ground by stakes of a particular description; that a fence was built in the same location as the fence in dispute long before 1868; and that as late as 1869 at least one of the original survey stakes upon that line still existed and corresponded with this fence. He also proved the execution and delivery of a warranty

8. See Damages, vol. 15, Cent. Dig. § 474.

stated a cause of action, so that defendant's objection to any evidence thereunder was properly overruled, as also the demand that plaintiff be required to elect as to how he should prove his ownership. After joining issue by answer, defendant was too late at the trial to ask any further specification, such as he might have required by a timely motion. Further, the allegation of adverse possession since 1870 was in no wise inconsistent with actual ownership by deed, and did not serve to qualify the assertion thereof.

The actual damages claimed by plaintiff included destruction of shade and fruit trees, berry bushes, and rhubarb plants. Evidence was admitted to prove the value of such things while in position as parts of the realty, and no evidence was given of the diminished value of the land by reason of their destruction.

The defendant on the trial substantial

ly conceded this to be the true rule and method of ascertaining damages, and requested no instruction to the jury for any other rule. He now, however, contends that the only measure of damages to the owner for such injuries is the diminished value of the premises. On this question the views of the courts are not uniform. In New York it has been held in a recent case (Dwight v. Railroad Co., 132 N. Y. 199, 30 N. E. 398, 15 L. R. A. 612, 28 Am. St. Rep. 563) that the only method of measuring compensatory damages from the destruction of fruit and shade trees not valuable after their severance from the property is the lessened value of the land itself. That case is not in accord with some earlier cases in New York, but may perhaps be taken as settling the rule in that state. But a different view has been taken elsewhere, and it has often been held that, while that method was open to a plaintiff suffering from a wrongful trespass, it was also open to him to offer proof of the value of the things destroyed to the real estate for the purposes of occupancy. That view is declared by Sutherland to be the better one. 3 Suth. Dam. § 1019, citing Railroad Co. v. Bohannon, 85 Va. 293, 297, 7 S. E. 236; Montgomery v. Locke, 72 Cal. 75, 77, 13 Pac. 401; Mitchell v. Billingsley, 17 Ala. 391, 393; Wallace v. Goodall, 18 N. H. 439; Whitbeck v. Railroad Co., 36 Barb. 644; Folsom v. River Co., 41 Wis. 602, 608. The question has never been fully considered by this court, but in Andrews v. Youmans, 82 Wis. 81, 52 N. W. 23, the latter method was adopted and passed without criticism, the judgment being affirmed on appeal. We think such rule the safe and proper one. It must not be forgotten that recovery in trespass is always based upon a wrongful invasion of the plaintiff's rights, and that the rule of damages adopted should be such as to more carefully guard against failure of compensation to the injured party than against possible overcharge upon the wrongdoer. An owner of real estate has a right to enjoy it according to his own taste and wishes, and the ar

rangement of buildings, shade trees, fruit trees, and the like may be very important to him, may be the result of large expense, and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially compensated, and yet the arrangement so selected by him might be no considerable enhancement of the sale value of the premises, it might not meet the taste of others, and the disturbance of that arrangement, therefore, might not impair the general market value. Hence it is apparent that while the owner may be deprived of something valuable to him, for which he would be willing to pay substantial sums of money or which might have cost him substantial sums, yet he might be wholly unable to prove any considerable damages merely in the form of depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it for sale, and if he has elected the former he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale. The case at bar presents an illustration. Amongst the shade trees claimed to have been destroyed was a well-grown willow tree, furnishing shelter from the weather and from the sun's rays. The plaintiff had erected his barn and arranged his barnyards so as to avail himself of this protection, and the defendant himself testified that, while the destruction of that tree would not impair the selling price of the lots, it would substantially interfere with the comfort and convenience of the plaintiff in the use of the barn and in caring for his domestic animals. No error was committed in admitting the proof complained of.

We cannot sustain the appellant's contention that error was committed by submitting the question of punitory damages to the jury. Defendant knew of plaintiff's claim to the land, and there was evidence which, if believed by the jury, fully warranted an inference of such degree of wantonness in the trespass, if not of actual malicious injury, as justifies the imposition of exemplary damages. The question of such damages being in the case, of course proof of defendant's financial condition was proper, as also an instruction that the jury might properly consider it in fixing the amount. We find no prejudicial error in the rulings of the trial court upon the detail of the examination of witnesses on this subject, to which several exceptions were taken.

The views already expressed indicate that we agree with the trial court upon the propriety of denying the motion on the minutes for a new trial. The later motion, based upon alleged newly discovered evidence, was also properly overruled, for the reasons both that such new evidence could not affect the result, and that no proper excuse was shown for failure to discover it for presentation up