the policy is an actual and entire loss of | their use as members of the body; and if their use is actually destroyed, so that they will perform no function whatever, then they are lost as hands and feet. In ordinary and popular parlance, when a person is deprived of the use of a limb, we say he has lost it. This is the ordinary sense attached to the word "loss," when used in such a connection. Now, if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost, as much as though actually severed from the body. The expression "loss of feet" would generally be understood to mean a loss of the use of these members; and, if the lower portions of the plaintiff's body and his feet are completely paralyzed, and he is permanently and forever deprived of their use, he has suffered “a loss of two entire feet," within the meaning of the policy. This is the proper construction of the words of the contract. It is a forced and unnatural construction of the language, as here used, to hold that it means an actual amputation of these limbs, and does not embrace and include an entire deprivation of their use as members of the body. It is not necessary to go into any recondite or elaborate discussion of the language of the policy, but only to give it its ordinary and popular sense. And, understanding it in that sense, we are very clear that the complaint states a cause of action, and that the demurrer was properly overruled. The order of the circuit court is affirmed, and the cause remanded for further proceedings.

(77 Win. 589)

ROBERTS v. WISCONSIN TEL. Co. (Supreme Court of Wisconsin.

Oct. 14, 1890.) OBSTRUCTION OF HIGHWAYS-TELEPHONE COM

PANIES.

Sanb. & B. Ann. St. Wis. § 1778, authorizes telegraph companies and-as construed in Telephone Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. Rep. 828-telephone companies to construct and maintain lines with all necessary appurtenances along public highways, but provides that the lines and appurtenances shall not at any time obstruct or incommode the public use of the highways. The complaint in an action against a telephone company for personal injury alleged that plaintiff with a companion was riding along a highway which had three traveled tracks; that the team was traveling on the north track, which was 8 feet from the fence; that between this track and the fence, and about 4 or 6 feet from the fence, were defendant's telephone poles, about 11 rods apart; that the highway was almost perfectly level: that, while plaintiff was attempting to alight from the buggy, the horses were frightened by an approaching team, ran into a telephone pole, threw him out, and caused the injury complained of. Held, on demurrer, that as the poles were set only far enough from the fence to permit the cross-arms to be entirely over the highway, the complaint did not state a cause of action, as the location of the poles did not obstruct or incommode the public use of the highway.

Appeal from circuit court, Dane county. Finches, Lynde & Miller, for appellant. Lewis, Pfund & Briggs, for respondent.

COLE, C. J. This is an action for personal injuries. It appears from the complaint that the plaintiff was riding with

another man in a buggy along the highway, which was almost perfectly level, and without any banks, borders, ditches, or rough or uneven places, or obstructions of any kind in it, except telephone poles, which were set in the highway 11 rods apart, and about 4 or 6 feet south from the fence on the north side thereof. There were three traveled tracks about equally used by the public for traveling. The track on the north side of the highway was about 8 feet from the fence on the north side of said highway, and about 3 feet from the telephone poles. The team was traveling on this north track, and it is alleged the horses were gentle and tractable, and were under the control of the driver when they were stopped to enable the plaintiff to get out of the buggy. While in the act of alighting from the buggy the horses were frightened by a team coming from behind, and ran along the highway coming in collision with a telephone pole, and the plaintiff was thrown forward from the buggy, in which he had regained his seat, and was endeavoring to stop the horses, and sustained the injurics of which he complains. Now, does the complaint state a cause of action? It appears to us that it does not. The only act of negligence complained of on the part of the defendant is the placing of telephone poles in the highway where they were set. These poles, as we have stated, were set from four to six feet from the fence on the north side of the highway, which would leave just room enough to permit the crossarms on the poles to be entirely over the highway. Was it lawful to place these poles in the highway? The statute authorizes any corporation formed to build and operate telegraph lines or conduct the business of telegraphing to construct and maintain its lines, with all necessary appurtenances, along a public highway. Section 1778, Sanb. & B. Ann. St. And in Telephone Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. Rep. 828, it was held that the statute included telephone companies, although such companies were not specifically mentioned therein. The poles then were not unlawful structures in the highway, but were authorized by law to be set therein. It is true the statute in effect declares that no telephone line or any appurte nance thereto at any time obstruct or incommode the public use of the highway. Assuming the facts as to the location of the telephone poles to be as alleged in the complaint we think they did not show any actionable negligence. They would certainly constitute no obstruction to the use of the highway, nor would the team have collided with them if it had been under the control of the driver, and properly managed. It was the fright and unmanageableness of the horses which was the real cause of the accident. If the horses had not run against the pole they probably would have run into the fence, and caused an injury to life or property. For, as observed by the defendant's counsel, it is impossible to so arrange the surface of a highway that it will be safe for a runaway team to speed upon it. And this court has said that "it is not the duty of towns to provide roads which shall be

safe for runaway or unmanageable borses, or such as have escaped from the control of their drivers, without the fault of the towns, and where injuries are sustained under such circumstances, it appearing that otherwise they might not have been sustained, the loss must fall upon the owners whose misfortune, if not whose fault, it is that they so happened." Jackson v. Town of Bellevieu, 30 Wis. 250-258. It is stated in the complaint that the highway where this accident occurred was perfectly level, with no ditches or rough or uneven places in it, there being nothing within the entire width to prevent a team from passing over it in safety, except the telephone poles set near the fence. These poles could not have been placed nearer the fence without encroaching upon the adjoining property. They seem to have been set with due care, and it is plain that they did not and could not have obstructed or incommoded the public use of the highway. We feel constrained to so hold upon the facts alleged.

That

The plaintiff's counsel suggests that the question whether the telephone poles incommoded the public use of the highway was one for a jury to determine. certainly is not the correct view where a question of law is raised by demurrer. It is for the court then to decide whether, the facts being admitted, a cause of action is stated. Of course the defendant confessed the facts to be as alleged, but denies that by the law arising on the facts the plaintiff should recover any damages. So here the court must say whether the defendant, by setting its telephone post in the place and manner described, was negligent, or was guilty of a breach of legal duty. We are clearly of the opinion that no actionable negligence is shown. The team could have passed along the highway in safety if the horses had not taken fright at the team coming from behind, and become unmanageable. That the horses ran against or struck the telephone pole was the fault or misfortune of the driver. The demurrer to the complaint should have been sustained. The order overruling the same is reversed, and the cause is remanded to the circuit court for further proceedings according to law. (77 Wis. 538)

LA FLEX V. BURSS. (Supreme Court of Wisconsin. Oct. 14, 1890.)

PARTNERSHIP-WHAT CONSTITUTES.

Plaintiff entered into a contract with defendant, the owner of land on which timber was standing, that plaintiff should cut the timber into cord-wood, that defendant should haul it to market, and that the money received therefrom should be equally divided between them. Held, that this was not a partnership arrangement, but simply a mode for measuring plaintiff's compensation for his work.

Appeal from circuit court, Clark county. James O'Neill, for appellant. R. B. Salter, for respondent.

COLE, C. J. We think there was no error in the trial court holding that the arrangement between the parties to this suit about cutting and marketing the cordwood did not make them partners in that v.46N.w.no.16-51

business. It seems that the defendant owned land upon which there was standing timber. He and the plaintiff entered into this arrangement. The latter was to cut the timber into cord-wood, and the former was to haul the cord-wood into market at coal-kilns, and the money which was received from the cord-wood was to be divided equally between them. The arrangement was simply a mode of measuring the compensation of the plaintiff for cutting the wood. In other words, he was to receive one-half of the money which the wood sold for, as a reward for his labor in cutting it. This did not constitute a partnership as between the parties, and none was intended. The plaintiff did not own, or have any title in, the cord-wood after it was cut. He could not control it, or sell it; but, when it was sold, he was to receive one-half of the proceeds as compensation for his services in cutting it. There was really no community of interests or sharing of profits or losses in the adventure. Whether one-half of the proceeds would pay the plaintiff good wages for the cutting of the wood, or would pay the defendant for his timber and expenses of hauling it to the coal-kilns, was a matter in which the other party had no concern. We think the evidence. shows that the agreement was that the cord-wood was to be hauled away by the defendant, and marketed within a reasonable time after it was cut, and the proceeds divided between the parties. But there was to be no sharing in profits and losses in the business, no community of interests in the profits as such, which is the principal criterion of a partnership; but at most it was a mere arrangement by which the plaintiff was to obtain compensation for his labor and services or his wages for cutting the cord-wood. Ford v. Smith, 27 Wis. 261; Nicholaus v. Thielges, 50 Wis. 492, 7 N. W. Rep. 341, and cases of that kind, go upon this principle: That where a man stipulates that, as a reward for his labor, he shall receive a given sum, even in proportion to the quantum of the profits, this will not necessarily make him a partner in the business. In Gilbank v. Stephenson, 31 Wis. 592, there was an understanding between the parties that each was to furnish a horse for breaking lands of other persons; that the plaintiff was to do all the work, and the defendant pay all the expenses, and the money earned was to be divided equally; it was held to constitute a partnership, because the business was to be done at the joint expense of the respective parties. But there was nothing of the kind in this case; hence there was no ground for holding that the action was brought to recover the balance of an unsettled partnership account. It was brought to recover the stipulated wages for cutting a quantity of cordwood. This is very plain.

It is said the court erred in allowing the plaintiff to state how much was due him. He testified as to how many cords he had cut under the arrangement, and what he was to be paid, and the quantity hauled away. He had had dealings with the defendant, had received supplies, and he stated generally the balance due

him on account. The circuit court directed the jury to find from the evidence how much was due the plaintiff for all the wood he had chopped, and to ascertain how much he had received for his work, and, if there was a balance in his favor, to give him the amount of that balance. The parties were sworn in the case, and testified fully about the original agreement, and as to the state of the accounts between them. The plaintiff was an illiterate man, and the accounts between the parties, so far as there were any, were mainly kept by the defendant. It is said there was no eridence that anything was due the plaintiff when the suit was commenced. We do not so understand the testimony. The evidence is entirely clear and satisfactory that the plaintiff had cut more wood than he had been paid for. True, according to the contract, the defendant was to pay the plaintiff his portion of the money as he marketed the wood, and it is probably a fact that he had not hauled and sold all the wood the plaintiff had chopped, when the action was commenced, but the evidence shows that the plaintiff had frequently requested him to haul the wood to market, as he wanted the money coming to him, but the defendant neglected to perform his duty in that respect. He claimed he was to have the next summer and next winter, if needed, to haul it away. We would be inclined to doubt the correctness of that statement, as it is Improbable when the circumstances of the parties are considered. The plaintiff was a poor man, and needed his wages to pay his debts, and support himself and family. And, though no specific instruction was asked and given upon the point, yet, under the charge, the jury must have found that the plaintiff had not been fully paid for his work when the suit was commenced. Whether the jury were satisfied from the proof that the defendant delayed hauling the cord-wood an unreasonable time after he should have hauled it, or that he had determined not to haul it until the next winter, and intended to raise the money and pay the plaintiff for what was due him for his work, we cannot tell. There is evidence in the case to warrant the latter conclusion. But certainly the issue as to whether the action was promaturely commenced, as to any portion of the plaintiff's claim, was not raised by the pleadings. Such an issue would of course be only in abatement of the action as to such portion, and it seems to us the objections should have been taken in some way on the trial before the cause was submitted to the jury. It is said in the printed case that the circuit judge, after verdict, stated that he charged in the manner he did because the defendant had not pleaded in abatement that the debt or demand was not yet all due. The learned circuit judge held that the plaintiff was entitled to recover, under the circumstances, all that had become due on the contract, for the same breach, up to the rendition of the verdict. If the defendant was not satisfied with the general charge as given, he should have asked an instruction directing the attention of the jury to that portion of the plaintiff's demand which

he claimed was not due. The jury found from all the evidence that the amount claimed by the plaintiff was due him, and we are unable to say that this finding is unsupported by the proof in the case. The judgment seems to be right on the whole record, and we affirm it, as it is in accordance with substantial justice and the real merits of the case.

PER CURIAM. The judgment of the circuit court is affirmed.

(77 Wis. 520)

MUENCHOW v. ROBERTS.

(Supreme Court of Wisconsin. Oct. 14, 1890.) VENDOR AND VENDEE-BREACH OF CONTRACT TO SELL-MEASURE OF DAMAGES.

1. In an action by the vendee for the breach of an executory contract for the sale of land the measure of damages is the difference between the value of the land and the price agreed upon; and the value of the use of the land for the period during which the payments were to have been made cannot be added, for such value is an element of a correct estimate of the value of the land.

2. Where the contract provides that the vendee shall raise five successive crops of oats on a certain portion of the land, and deliver the same to the vendor in payment for the whole tract, the contract price of the land, estimated in money, is the expense of raising and delivering the five crops of oats.

3. In an action for the breach of this contract, the taxes which the vendee would have paid during his five years' occupancy cannot be added to the cost of the raising and delivering the oats to reduce damages, for the true measure of damages in such case is the value of the bargain; that is, the difference between the value of the land at the time the contract was made and the agreed price.

Appeal from circuit court, La Crosse county.

On April 9, 1883, the parties entered into a contract in writing, under seal, for the sale by the defendant to plaintiff of 300 acres of land in La Crosse county. The plaintiff agreed to raise oats on a specified portion of the land, said to contain 100 acres, in each year, for five years then next ensuing, and to deliver the same to defendant at his elevator in Bangor. It was also agreed that said five crops of oats when so delivered should be full payment for the land. The value of the land is not otherwise specified. The contract gives the plaintiff the possession of the land from its execution, and requires him to pay the taxes thereon from that time. It further provides that when payment therefor is fully made, as aforesaid, the defendant shall convey the land to plaintiff by deed of warranty. This action was brought to recover damages for the entire breach of the contract by the defendant. It was alleged in the complaint that two days after the execution of the contract, and several times thereafter, the defendant refused to allow the plaintiff to enter into possession of the land, and that the defendant has failed to perform the stipulations on his part contained in the contract. There was a controversy on the trial as to whether the plaintiff or the defendant refused to execute the contract, or whether it was rescinded by mutual consent. The jury found for the plaintiff, and assessed his damages at $500. By so find

ing they necessarily found that the defend- | ant rescinded the contract without the consent of the plaintiff. It is unnecessary to state the testimony. The rulings of the court on the trial are stated in the opinion. The defendant appeals from a judgment against him pursuant to the verdict.

G. E. Prentiss and Bleekman, Tourtellotte & Bloomingdale, for appellant. Winter, Esch & Winter, for respondent.

LYON, J., (after stating the facts as above.) On this appeal it is only necessary to consider the question litigated on the trial as to the measure of damages. The court charged the jury, in substance, that the true measure of damages was the difference between the expense of raising the five crops of oats, together with the amount of taxes plaintiff agreed to pay, and the aggregate values of the 300 acres of land, the use of 200 acres thereof, and the fire-wood which plaintiff would have been entitled to take therefrom had he gone into possession of the land; that is to say, on one side of the account the jury were directed to place the value of the land, the value of its use, except the 100 acres, and the value of such fire-wood, and on the other side of the account they were directed to place the probable cost of raising and delivering the oats, and the amount of taxes the plaintiff would have to pay under the contract; and they were instructed that if such values of the land, the use thereof, and the fire-wood, exceeded the cost of raising and delivering the oats and the amount of such taxes, the difference was the measure of plaintiff's damages, if he was otherwise entitled to

recover.

The plaintiff is entitled to recover, if at all, the value of his bargain. The true measure of such value is the value of the land the defendant contracted to sell to him, estimated at the time the contract was broken, less what the plaintiff agreed to pay therefor. This is the general rule in this state in an action by a purchaser to recover damages for the breach of an executory contract to sell either real or personal property where no part of the consideration has been paid. Hall v. Delaplaine, 5 Wis. 206; Hill v. Chipman, 59 Wis. 211, 18 N. W. Rep. 160. There may be exceptions to this rule, but we do not think this case is within any of them. It must be held that the case is governed by the general rule above stated. If the purchase price equals or exceeds the value of the thing purchased, the purchaser can only recover nominal damages. The court authorized the jury to assess damages on the basis not only of the value of the land, but the value of the use of 200 acres thereof, and the plaintiff's right to take fire-wood therefrom, we suppose, for the period of five years. This was error. The value of the use of the land, which includes the right to take firewood therefrom, is an element which enters into any correct estimate of the value of the land itself, and enhances such value. So when the value of the land is ascertained, it includes the value of the use of the land for all purposes. Adding any sum thereto

for the use of the land necessarily increases the plaintiff's damages beyond the limits of the rule. For this error there must be a new trial.

On the same principle the taxes should not be included with the cost of raising the oats, to reduce damages. We think the court was correct in holding that the contract price for the land was the necessary expenses of raising the five crops of oats and delivering the same to the defendant pursuant to the contract. The contract names no price for the oats, and does not call for the delivery of any specified quantity or quality. The defendant took the whole risk of price, quantity, and quality, the plaintiff only binding himself to raise and deliver the crops. We think the plaintiff would not have been the owner of the oats before delivery, had the contract been executed, but that the title thereto would always have been in the defendant, who could have held the same against the plaintiff, his vendee, or creditors. If this view is correct, it seems quite clear that plaintiff did not agree to pay for the land in oats, but in labor and services to be employed in the raising of the oats for defendant on land to which the defendant retained the legal title as security for the performance of the contract. We are satisfied that such is the substance and legal effect of the contract, although it is conceded that language is employed therein upon which a plausible argument to the contrary may be framed. The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

(77 Wis. 573)

CHANDOS V. MACK et al. (Supreme Court of Wisconsin. Oct. 14, 1890.) PUBLIC LANDS-GRANTS-UNSURVEYED ISLAND.

Where the government leaves a small island in a navigable river, lying between the shore and the middle of the stream, unsurveyed, and sells all the surveyed islands, and all the lands on both sides of the river, without any reservahave passed to the riparian owner. tion as to such island, the title will be held to

Appeal from circuit court, Wood county. Silverthorn, Hurley, Ryan & Jones, for appellants. Gardner & Gaynor, for respondent.

COLE, C. J. There is no dispute about the facts in this case, but the counsel disagree as to the law arising upon those facts. The action is ejectment, brought by the plaintiff's intestate, who claimed to be the owner, as riparian proprietor, of an island in the Wisconsin river, a navigable stream. She held and owned under various mesne conveyances the title derived from the general government of lot 4 in section 8 and lot 3 in section 17, township 22, range 6 east, which lots lie on the main west bank of the river, opposite to the island in controversy. She claimed that she was entitled to the possession of this island by virtue of the grant of the general government of lots 3 and 4 to those under whom she derived title, cxcept as to certain rights which the defendants have under a deed that is mentioned in the evidence, but which does not affect

any question in issue here. The island lies near the west bank of the river, as we have said, opposite lots 3 and 4; is west of the main channel and west of the thread of the stream, and also west of the main navigable portion thereof. It is separated from the west bank of the river by a narrow channel, or slough, which varies in width from 95 to 100 feet, and is separated from the east bank of the river by a channel which varies in width from 320 to 700 feet. The channel between the island and the west bank of the river has not been used since the settlement of the country for purposes of navigation, except to run out lumber manufactured at the mills on the main-land on the west bank. The portion of the river used for the purpose of navigation is the main channel east of the island. The island is about 1,250 feet in length, and varies in width from 70 to 300 feet; it is a rocky formation, covered with a thin, sandy soil, and was originally covered with timber, which has been removed. It lies up and down the river, nearly parallel with the thread of the stream. It is not overflowed in ordinary freshets, but is substantially submerged in extraordinary floods. The island contains between two and three acres of land. When the general government, by its agent, surveyed and platted lots 3 and 4, and the lands on either side of the river opposite the island, it made no survey or plat of the island, or of any part of it; nor has the government ever surveyed and plotted it, although the location of the island is marked upon the government plat of the survey of the lands opposite and adjacent thereto. The government many years since disposed of all its lands on the river opposite and adjacent to the Island, and there is nothing which tends to show that the government intended to reserve the island as a part of the public domain. The island is referred to in the field-notes of the meandered line, but it was not surveyed, though its location is marked upon a plat of surveys, so that the fact of its existence was not overlooked by the agents of the government when such surveys were made.

Now, the question in the case is, to whom does the island belong? Did it pass to the purchasers of lots 3 and 4 on the bank of the river opposite to it. The island lies between these lots and the middle of the river, and there is nothing to show, As we have said, that the government intended to reserve any right or interest in the island. As there was no such reservation, the presumption is that the government did include it, and pass all title to it to the purchaser. On the part of the plaintiff it is insisted that the title did pass to the purchaser of lots 3 and 4 on the west bank of the river. The position of the learned counsel is this: He says when the general government, by its agents, surveys a section of land lying partly in a navigable stream, which embraces islands of various sizes in such stream, it subdivides the entire section into such lots and subdivisions as it sees fit, and leaves some such islands unsurveyed, and places the same in market, and disposes of all said lots and subdivisions,

so surveyed and platted; that then it has parted with its entire interest in the section to the purchasers, who, as riparian proprietors, take under their respective grants to the middle of the stream; that, under such circumstances, the presumption is that the government intended to make no reservation, but intended that all its title should pass by its grant, as in case of a private conveyance. It seems to us there is great force of reason,, and much good sense, in this view of the law. In this state, the settled rule is that a grant by an individual of land which is bounded on a navigable stream vests in the grantee the title in the bed of the river to the thread of the stream, subject to the public right of navigation. The cases in this court where this doctrine has been laid down are numerous, but are so familiar to the profession that it is unnecessary to cite them. The precise question, however, here presented,-whether the title of an unsurveyed island between the shore and middle of the stream would pass to the purchaser,-has not been directly decided; but we see no principle of law or good reason for holding that it would not so pass. The inference certainly is very strong, when the government leaves a small island in a navigable river, lying between the shore and middle of the stream, unsurveyed, and sells all the surveyed islands, and all the lands on both sides of the river, that it intends to abandon all right to such unsurveyed island, and let it pass to the riparian owners of lands on the river as an incident to its grant. It seems formerly to have been the policy of the government to survey islands omitted from the general survey, and sell them, but, from a letter of the acting commissioner of the general land-office, which was introduced on the trial, it appears that this practice has been abandoned because it was found disadvantageous to the public interest, and applications for such surveys are no longer entertained. This item of evidence gives additional strength to the inference as to the effect of the grant itself from the government,that, where no right is reserved, the grant of lands on the bank of the river vests in the purchaser the title of any unsurveyed islands lying between the main-land and the center of the stream, since the government no longer desires to assert any interest to an island thus situated and omitted in the original survey. "In the case of Middleton v. Pritchard, 3 Scam. 510, the supreme court of Illinois held that, when a government grant is made which does not reserve a right or interest that would ordinarily pass by the rules of law, and the government does no act which indicates an intention to make such reservation, the grant includes all that would pass by it if it were a private grant; and that, as the United States had not imposed any limitation upon its grant of the land in question, which was an island in the Mississippi river, separated from the adjoining land by a slough, the title of the riparian owners extended to the thread of the river, and included the island." Gould, Waters, § 69. So, "in Railroad Co. v. Schurmeier, 7 Wall. 272, the question was