as to the title to an island in the Mississippi river, which, at the time of the survey, was a mere sand-bar, about 90 feet wide and 160 feet long, separated from the main-land by a slough, or channel, 28 feet wide. The island was submerged at high water, (of which no notice was taken in making the survey,) and the slough was insignificant in comparison with the main river. At the time of the action, the sandbar had been filled in and covered with valuable improvements, and the contest was between the owner of the adjoining fraction and the railroad company which claimed the bar, under a new survey made by a United States surveyor, and a congressional grant of certain odd-numbered sections. It was held that the sand-bar was included in the first survey as a part of the main-land." Gould, Waters, § 77. See same case, 10 Minn. 82, (Gil. 59.) It seems to us that the decision in the last case is decisive of the one before us. It is true, as observed by plaintiff's counsel, there are facts in the case at bar much stronger in favor of the plaintiff than in the Schurmeier Case. The general government had actually conveyed the island in controversy there, and attempted to grant it to the state of Minnesota for certain purposes, and the defendant claimed under the state. But in the case before us, there is no pretense that the government has ever surveyed, or attempted to convey, this island as a lot separate from the survey and conveyance of lots 3 and 4 on the adjacent main shore, or that it has ever claimed, or now claims, to be the owner of the island, nor is there any pretense that the patent of the general government, issued on the sale of those lands, reserved any right or interest that would ordinarily pass, by the rules of law, to the patentee, or that it did any act indicating an intention to make a reservation. The quantity of land included in the island was never ascertained or attempted to be sold, and we think it must be deemed to have been included in lots 3 and 4, and to belong to the riparian owner of those lots. This view renders it unnecessary to consider the question whether the plaintiff acquired any title from the state by virtue of the patents offered in evidence. The judgment of the circuit court is affirmed.

(77 Wis. 509)

LONG et al. v. DAVIDSON et al. (Supreme Court of Wisconsin. Oct. 14, 1890.) LOGS AND LOGGING-ESTOPPEL-EVIDENCE.

1. Plaintiffs agreed to sell their land, and contracted with the vendee that he might cut the logs thereon, but that they should remain plaintiffs' property till the price of the land was paid. The contract also specified what marks should be put upon the logs. Defendant with knowledge of plaintiffs' contract bought the logs from the vendee, but claimed that he was not liable to plaintiffs for their price because the marks put on the logs were the same as his own private recorded nark, with which all of the logs delivered to him were branded. It did not appear that plaintiffs knew what defendant's recorded mark was. Held, that plaintiffs were not estopped from asserting their title against defendant, and could recover from him the price of the logs.

2. Plaintiffs' vendee's insolvency and failure to comply with his contract with plaintiffs does not affect defendant in any way, as he was fully

COLE, C. J. It cannot well be denied that the plaintiffs originally owned the timber from which the logs in controversy were cut. They were the owners of the lands, and of course, of the standing timber upon them. In March, 1887, they entered into the contract with Thompson by which they agreed to sell the lands to him for $2,000, and gave Thompson the right to enter upon the lands, and cut the timber into saw-logs, and haul the logs to Levis creek, and bank the same; but the contract provided provided that the logs should be and remain the property of the plaintiffs until the full performance of the contract by Thompson, or until the $2,000 were paid. The contract provided how the logs cut from these lands should be marked; that is, for a bark or side mark, with the letters N. Y. X., and for an end mark, with the letters A. D. V., stamped thereon, and the letter P. was to be marked on the end with chalk. It is not claimed that this chalk mark was put on the logs, but the other marks were put on, and it is said that they were the same marks as Thompson put upon the logs, which he furnished on his contract, made with the defendant Davidson, in October, 1886. In fact, under this latter contract, the logs were to be marked A. D. V. for the end mark, and N. Y. X. X. X. for the side mark, and, for convenience, it was verbally agreed that two X's should be omitted from the side mark, and these two letters were left off from nearly all the logs, which were delivered on the Davidson contract; so the logs which were cut from the plaintiff's lands, and those under the Davidson contract, could not be distinguished from each other by the marks. The logs were all banked upon the same stream, and were intermingled in running and coming to the possession of Davidson. Indisputably Davidson has had logs which belong to the plaintiffs, which were cut from their lands, and why should he not pay for them? We perceive no reason or principle of law, which, upon the established facts, exonerates him from paying at least to the extent of the unpaid purchase money due for the lands from which the logs were cut, and this is all they did recover in the action. But it is said that the acts and conduct of the plaintiffs have been such as ought, both in law and equity, to estop them from asserting ownership in the logs as against Davidson. It is insisted, they should not have authorized the logs cut from their lands to be marked with the private recorded log-mark of Davidson, so that the different logs could not be readily distinguished. In answer to this

objection it is said the evidence fails to show that the plaintiffs knew what Davidson's log-mark was, or that they authorized it to be placed on their logs; and such is the effect of the testimony, as we understand it. There is no ground for saying that the plaintiffs' logs were marked with Davidson's private record mark, or that they knew anything about his contract with Thompson. As we have said, if the plaintiffs had read that contract, they would have seen that it clearly provided that the logs furnished under It should bear a different mark from the ous which was placed on their logs. What Davidson's legal recorded log-mark was, when the plaintiffs made their contract with Thompson, does not satisfactorily appear from the evidence. He claims that it is the same as the mark authorized to be put on the plaintiffs' logs, but that fact is not established by the certificate of the lumber inspector which was introduced in evidence. Davidson himself testifies that he had recorded and used a mark in his contract,-N. Y. X. X. X., side mark,-but when he recorded a different side mark does not appear. The presumption is very strong that his recorded side mark was N. Y. X. X. X. when he made his contract with Thompson for the delivery of the 6,000,000 feet, because that was the side mark which was to be placed on the logs under that agreement. So we can see no ground for saying that the plaintiffs are estopped from asserting their rights in the logs, because of the manner they were marked. It certainly does not appear that they had any notice or knowledge that the mark put upon them was Davidson's recorded log-mark, and the inference is very cogent that it was not; and we think the evidence is conclusive that Davidson was not misled by the mark on the plaintiffs' logs, and that he knew all about their contract with Thompson, for he obtained possession of them. He knew all about the plaintiffs' title, and that the logs would remain their property until the purchase price of the lands was paid. He does not therefore stand before the court, and cannot be regarded, as an innocent purchaser of the plaintiffs' property, for value; nor have the plaintiffs done any act which should preclude them from asserting their ownership of the logs.

We are at a loss to see the materiality of the proposed amendment, in regard to the assignment and insolvency of Thomp

son, before the commencement of this action. How can that fact affect the plaintiffs' right to recover the value of their property? It is true Thompson was in default on his contract with the plaintiffs. He had failed to make payments, as that contract provided, but the plaintiffs had not brought suit against him, as they might have done, but how this forbearance on their part raised any equities in favor of Davidson we cannot understand. It is sufficient to say that Davidson knew all about the plaintiffs' claim to the logs before they came into his possession. He had ample opportunity to protect himself against loss by reserving money on bis contract with Thompson. It does not

appear that he has been in any way injured by the delay in suing Thompson. We are also unable to see how the defendant could have been prejudiced by the admission in evidence of the contract between Thompson and the plaintiffs. That contract would show that Thompson was not a trespasser in cutting their timber; it would also show the extent of their interests in the logs. The plaintiffs did not recover the full value of the logs, but only the amount of the unpaid purchase money due on this contract. That was about the value of the stumpage, as found by the jury. Many of the questions in this case were considered and passed upon in Lilllie v. Dunbar, 62 Wis. 198, 22 N. W. Rep. 467, and need not be further discussed. It is very clear to our minds that Thompson could give Davidson no greater or better title to the logs than he had, under his contract, and, as the logs were to remain the property of the plaintiffs until the lands were paid for, it seems plain they are entitled to recover to the extent of the purchase money. We see no error in the case, and affirm the judgment.

(77 Wis. 634)

ELIOT V. ELIOT. (Supreme Court of Wisconsin. Oct. 14, 1890.) MARRIAGE PROCEEDING TO ANNUL-NONAGEVOLUNTARY COHABITATION.

1. Rev. St. Wis. § 2350, provides "when either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting have been obtained by force or fraud, and there thereto, or when the consent of either party shall shall have been no subsequent voluntary cohab Ition of the parties, the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof." Section 2353 provides that "no marriage shall be declared a nullity on the ground consent, if it shall appear that the parties, after they that one of the parties was under the age of legal had attained such age, had, for any time, freely cohabited together as husband and wife." Held, that voluntary cohabitation, before the age of consent, did not defeat an action for the annulment of a marriage on the ground of want of age or understanding.

male person who shall have attained the full age 2. Rev. St. Wis. § 2329, provides that "every of 18 years, and every female who shall have attained the full age of 15 years, shall be capable in law of contracting marriage, if otherwise competent." Held that, though there was no express provision that persons under these ages should be incapable of contracting marriage, still the common-law rule as to the ages of consent was abrogated by the statute.

3. It is not necessary that a party to such marriage wait until the statutory age of consent before bringing action to annul it.

4. The averment of a complaint that the parties have been residents of the state for "one year immediately preceding the commencement tiff's residence at the commencement of the acof this action" is a sufficient allegation of plaintion.

Appeal from superior court, Milwaukee county.

This action was commenced February 21, 1890, to obtain the annulment of a marriage, under Rev. St. § 2350. The complaint alleges that the parties intermarried at the city of Milwaukee, in this state, January 5, 1890; that they have been resi

the

dents of this state for the period of one year or more immediately preceding the commencement of the action; that at the time of said marriage the plaintiff had not attained the age of 18 years, but was of the age of 15 years on the 23d day of February, 1889; and that he has not yet attained the age of 18 years. The relief demanded is that such marriage be decreed void from such time as shall be fixed by the judgment of the court. The defendant demurred to the complaint on grounds that it appears therefrom the court has no jurisdiction of the person of the plaintiff, or the subject of the action, and that it does not state facts sufficient to constitute a cause of action. After the was interposed, the plaintiff amended his complaint by adding thereto the following averments: "That on the day of said marriage, and on the day succeeding said marriage, the plaintiff and defendant had or attempted to have sexual intercourse, but at no time since said marriage have they lived together or cohabited as man and wife, or had or attempted to have sexual intercourse, except as aforesaid, and there is no possibility of issue of said marriage. The demurrer (which has been regarded and treated on all hands as a demurrer to the amended complaint) was overruled by the superior court. The defendant appeals from the order overruling the same.

Howard & Schmitt, for appellant.

Because the statute (Rev. St. Wis. § 2329) does not expressly provide the persons under the ages respectively named shall be incapable of contracting marriage, valid and binding marriages may still be contracted by persons who have reached the common law ages of consent, though they have not reached the respective ages specified in the statute. People v. Bennett, 39 Mich. 208; Holtz v. Dick, 42 Ohio St. 23; McDowell v. Sapp, 39 Ohio St. 558; Shafher v. State, 20 Ohio, 1; McDeed v. McDeed, 67 Ill. 546; Fitzpatrick v. Fitzpatrick, 6 Nev. 63; Koonce v. Wallace, 7 Jones, (N. C.) 194.

Van Dyke & Van Dyke, for respondent.

LYON, J., (after stating the facts as above.) I. The first ground of demurrer assigned is that the court has no jurisdiction of the person of the plaintiff. This is based on the assumption that the coinplaint fails to show the plaintiff was a resident of this state when the action was commenced. But we think the complaint sufficiently alleges such residence. The averment therein is that the parties have been residents of this state for "one year immediately preceding the commencement of this action." We do not perceive how this can be true and the plaintiff have been a non-resident of the state when the action was commenced. Moreover, the provision of the statute on this subject, (Rev. St. § 2359,) so far as applicable here, is that "no divorce shall be granted unless the plaintiff shall have resided in this state one year immediately preceding the time of the commencement of the action, unless," etc. Undoubtedly this statute is applicable to this action. The complaint follows substantially the language of the

statute in respect to the residence of the plaintiff, and shows that he is not within the prohibition of section 2359. This is sufficient.

II. The second and third grounds of demurrer go to the sufficiency of the complaint. They will be considered in their order.

1. It is claimed that, if the parties voluntarily cohabited after the marriage, no action can be maintained under section 2350 for the annulment of the marriage, and that the amended complaint shows such cohabitation. Although the learned counsel for the respective parties agree that the complaint may be considered as containing an averment of voluntary cohabitation after marriage, the fact is there is is no such averment therein. It is only stated that after the marriage the parties "had or attempted to have sexual intercourse. This falls far short of an averment that they had such intercourse. In determining the validity of a pleading we must take it as it is, notwithstanding counsel agree that, for the purposes of the argument and decision, it may be treated as something which it is not. Hence, we cannot regard the amended complaint as containing an allegation of such voluntary cohabitation. But if the construction of section 2350 for which counsel for defendant contends be adopted, we are willing to assume, for the purposes of this appeal, that the complaint should negative such cohabitation. This not being done, if defendant's construction of the statute prevails, the complaint would (on the above assumption) be equally as defective as though it expressly expressly admitted such cohabitation. This view renders a construction of the statute necessary. Section 2350 reads as follows: "When either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof." If the grammatical con

struction of the section alone be considered, it must be conceded, we think, that the qualifying words "and there shall have been no subsequent voluntary cohabitation of the parties" refer to and control actions for the annulment of marriages for incapacity to assent thereto for want of age or understanding as well as those to which assent has been obtained by force or fraud. But this is not conclusive. If there is anything in the statutes which evidences a contrary intention on the part of the legislature, such intention ought to prevail. We are of the opinion that section 2353 contains a provision which manifests such contrary legislative intention. It reads thus: "No marriage shall be declared a nullity, on the ground that one of the parties was under the age of legal consent, if it shall appear that the parties, after they had attained such age, had, for any time, freely cohabited together as husband and wife." This provision is in pari materia with section 2350, and they must

reason why the case should hereafter be long protracted, or very expensive. The plaintiff's father is of ample pecuniary ability, and is to some extent responsible for this suit. Although under no legal obligation to advance the money required, we think plaintiff's guardian may reasonably expect that he will do so. In this matter this court exercises its discretion, without assuming to interfere with the discretion of any other court on similar applications. The motion for suit money is granted, and an order therefor will be entered, as above indicated, giving the plaintiff 20 days from the entry of the order in which to comply therewith. The order of the superior court overruling the demurrer to the complaint is affirmed, without costs.

(77 Wis. 544)

ROBINSON v. TOWN OF WAUPACA. (Supreme Court of Wisconsin. Oct. 14, 1890.) PERSONAL INJURIES-EVIDENCE-INADEQUACY OF VERDICT.

1. In an action against a town for personal injuries sustained by plaintiff's being thrown from a dog-cart in which she was riding with her husband, by reason of its striking an obstruction in the highway, testimony of the opinions of witnesses as to the safety of a dog-cart when used by two riding together in it on ordinary country roads is inadmissible.

2. But where the verdict is for plaintiff, such error is not sufficient ground for reversal, as it was not prejudicial.

3. Where the testimony as to the extent of plaintiff's injuries attributable to the accident is conflicting, a verdict for $167 will not be set aside as inadequate, as such a verdict, though small, does not disclose that perversion of judgment on the part of the jury which would justify an interference with their discretion in fixing the damages under the testimony.

Appeal from circuit court, Waupaca county.

This is an action to recover damages for personal injuries to the plaintiff, alleged to have been caused by a defective highway in the defendant town. On June 6, 1886, the plaintiff was riding with her husband on such highway in a vehicle on two wheels, called a "dog-cart," drawn by one horse, then being driven by her husband. When the horse was walking briskly, one wheel of the cart struck a stone a few inches high, firmly fixed in the ground, and extending from the side of the traveled track to within three or four inches of one of the wagon ruts in the track; and, by reason of the concussion, plaintiff was thrown from the cart, and received the injuries complained of. On the trial of the cause, the court allowed witnesses for the defendant to testify, against objection by the plaintiff, that, in their opinion, carts like the one in which plaintiff was riding at the time she was injured are unsafe for the use of two persons riding over ordinary country roads. The trial resulted in a verdict for the plaintiff, assessing her damages at $167. The plaintiff moved for a new trial, mainly on the ground that the damages so assessed are inadequate to compensate her for the injury she proved she sustained. The motion was denied, and judgment was thereupon entered for the plaintiff, pursuant to

the verdict, from which judgment she appeals to this court.

Cate, Jones & Sanborn, for appellant. Reed, Grace & Rock, for respondent.

LYON, J., (after stating the facts as above.) Counsel for the plaintiff claims a reversal of the judgment on two grounds. These are that the court erred in allowing witnesses for the town to testify that, in their opinion, the cart in which the plaintiff was riding was unsafe for the use of two persons riding together in it on ordinary country roads, and that the damages awarded the plaintiff are grossly inadequate to compensate her for the injuries she received.

1. Undoubtedly it was error to admit testimony of the opinions of witnesses that the cart was thus unsafe. That was a question for the jury, upon all the facts in the case. This court so held in Kelley v. Fond du Lac, 31 Wis. 179; Oleson v. Tolford, 37 Wis. 327; Griffin v. Town of Willow, 43 Wis. 509; and other cases. But the jury found for the plaintiff, and, in order to do so, they must necessarily have found that the cart was a proper vehicle to be used by the plaintiff and her husband at the place where she was injured. Hence the testimony thus erroneously admitted did not prejudice or harm the plaintiff, and the error in admitting it is not sufficient ground for reversing the judgment.

II. Were the damages which the jury awarded the plaintiff so inadequate to compensate her for the injuries she sustained that it was the duty of the circuit court to set aside the verdict for that reason? That the court may, and in a proper case should, set aside a verdict for inadequacy of damages and award a new trial, is not questioned. This court so held in Emmons v. Sheldon, 26 Wis. 648, and Whitney v. City of Milwaukee, 65 Wis. 409, 27 N. W. Rep. 39. But, to justify the interference of the court with the verdict, it must appear from the testimony that the damages awarded are so grossly disproportionate to the injury that, in awarding them, the jury must have been influenced by a perverted judgment. The court was able thus to characterize the verdict in Emmons v. Sheldon, for the damages there awarded were but $5, (which charged the plaintiff with the costs of the action,) although it was proved that the plaintiff suffered a most serious bodily injury. There seems to have been no controversy as to the extent of such injury. And so in Whitney v. City of Milwaukee the undisputed evidence proved that the plaintiff was so seriously injured that the damages awarded by the jury therefor were grossly inadequate compensation, and so small that the plaintiff was chargeable with the costs, which exceeded the damages awarded. This court was able to say that the verdict was perverse, and that, quoting from the opinion delivered by Mr. Justice ORTON, "such a verdict is trifling with a case in court and public justice, and unworthy of twelve good and lawful men, and is justly calculated to cast odium on the jury system and jury trials." We adhere to the rule