State ex rel. Redenius v. Waggenson, 140 Wis. 265.

writ, to warrant its issuance. Merrill, Mandamus, §§ 222, 223. Where the right to have the particular act done at the time and in the manner demanded is dependent upon some other act having been done or some condition existing, in order to show affirmatively by the petition for the writ that the relator is entitled, as claimed, facts must be stated therein showing that such preliminary act has been done or condition created. State ex rel. Spaulding v. Elwood, 11 Wis. 17; State ex rel. Sloan v. Warner, 55 Wis. 271, 9 N. W. 795, 13 N. W. 255; State ex rel. Neeves v. Wood Co. 72 Wis. 629, 40 N. W. 381; State ex rel. Gericke v. Mayor, etc. 99 Wis. 322, 74 N. W. 783.

The quoted authorities are particularly applicable to this case, in that they are to the effect that where the doing of the official act in question requires the expenditure of money, performance cannot be coerced by mandamus in absence of a showing that money is presently available, applicable to do the particular matter.

Now in this case there is no showing in the petition that respondents had money which could properly be applied to repair of the ditch. If they had no such money under their control, it was plainly shown by the relator, as the fact is, that it was only obtainable by their filing a report, as the drainage law (ch. 419, Laws of 1905) provides, specifying, among other things, in detail, the labor necessary to the preservation and protection of the improvement, the places needing repairs, and securing, on due notice and hearing, judicial approval of the proposed work and expenditure, and determination of the amount of the assessment upon each particular parcel of land benefited, and collection of such assessments in due course, and it was further alleged that no such report had been made though the law requires one to be made in the circumstances of respondents, annually, to the court having jurisdiction of the matter. Thus by the statute it is left to the judgment of the commissioners, preliminarily,

Bretz v. R. Connor Co. 140 Wis. 269.

and to the court finally, what repairs to a drainage ditch are needed, and the method is provided for obtaining the necessary funds, which is necessarily exclusive.

The most the petition shows as to default on the part of the commissioners, is failure to make the required report. No action in that respect was demanded before commencement of these proceedings, nor do such proceedings contemplate coercion of respondents in such respect. So far as is disclosed, it is proposed to cause respondents to repair the ditch regardless of whether there is money applicable therefor, or whether the conditions precedent to the making of repairs have been complied with, merely because there is need for the repairs and respondents have failed to present the matter to the court for consideration and direction and in due course to accumulate the necessary money to meet the expense. In other words, it is proposed to compel respondents to make the repairs at their own expense, as a sort of penalty for the default aforesaid, and take their chances of later recouping the same by collection of approved assessments upon the property benefited. Sufficient has been said to show, clearly, that the facts stated in the petition for the writ of mandamus do not constitute any basis for the relief sought and, therefore, that the writ was properly quashed. By the Court.-Order affirmed.

BRETZ, Respondent, vs. R. CONNOR COMPANY, Appellant.

September 15-October 5, 1909.

Deeds: Construction• Conveyance of standing timber: Time limit on removal: Agency: Change in deed before delivery: When grantors bound

1. Under a deed conveying timber standing or situated on certain lands, "with the right to the" grantee "to enter upon said lands and remove said timber

at any time on or before" a

Bretz v. R. Connor Co. 140 Wis. 269.

certain date, only such timber passes as is removed during the time specified.

2. A person intrusted with a deed for the purpose of obtaining the signatures of the grantors and making delivery for them, was clothed at least with apparent authority to close the deal on their part; and where, on his presenting the deed to the grantee, the latter objected to the date specified therein as the expiration of the time within which a corporation must remove from the land certain standing timber which the grantor had conveyed to it, and the agent thereupon changed such date to correspond with that specified in the conveyance to the corporation, the grantee had a right to rely upon the agent's apparent authority and to accept the deed as thus changed, and the grantors were bound thereby.

APPEAL from a judgment of the circuit court for Wood County: CHAS. M. WEBB, Circuit Judge. Affirmed.

This action was brought to recover the value of pine timber cut and removed by the defendant from the northeast quarter of section 10, township 27, range 2 east, in Marathon county. The defendant claimed title under a deed dated May 17, 1901, which contained the following provision:

"All the merchantable log and basswood bolt timber standing or situated on west one-half of section ten (10), southeast quarter and west half of northeast quarter of section ten (10), and the west half of southwest quarter of section number eleven (11), all in township number twenty-seven (27), range number two (2) east. Also with the right to the party of the second part to enter upon said lands and remove said timber and to do such work as is necessary for removal of said timber, at any time on or before two years from April 15, 1901."

The deed of the timber to defendant was given by Edwin L. Reese, Adam Paulus, and W. D. Connor, and recorded May 20, 1901. Most of the timber was cut during the winter of 1902 and 1903, but some remained after April 15, 1903. On the 19th day of September, 1902, said Paulus,

Bretz v. R. Connor Co. 140 Wis. 269.

Reese, and Connor deeded a quarter-section of this land to the plaintiff, which deed contained the following provision:

"Excepting and reserving the merchantable saw-log timber and bolts heretofore sold to R. Connor Co., with the right to enter upon said land to remove said timber any time prior to April 15, 1903 (1903).”

It was claimed on the trial that the deed from Paulus, Reese, and Connor to the plaintiff had been changed after execution so as to make the right to enter upon the lands to remove the timber read, "any time prior to April 15, 1903," whereas as originally executed it read "April 15, 1904,” and that such deed on its face bore evidence of the change. The case was submitted to the jury and the following verdict returned:

"(1) Was the plaintiff's deed, after being signed by Adam Paulus and Edward L. Reese, changed by W. D. Connor by changing the year '1903' to the year '1904' in the clause relating to the time for the removal of timber? A. No.

"(2) Did W. D. Connor consent to the change in plaintiff's deed as made by Mr. Reynolds of '1904' to '1903'? A. No.

"(3) Did the defendant, before entering upon the southeast quarter of section 10 to cut the timber, acquire a title to the timber in question in good faith, believing the same to be valid? A. Yes.

"(4) During his negotiations with Reynolds did Paulus inform Reynolds, in substance, of the extension of time to the defendant for the removal of the timber, and that such extension, in case of a sale of the lands, must be protected to the satisfaction of W. D. Connor? A. Yes.

"(5) Did the defendant, on and after November 1, 1903, in good faith enter upon said land and cut the timber therefrom, believing it then had a valid title thereto? A. Yes.

"(6) What was the true stumpage value of the timber cut by the defendant on the southeast quarter of section 10 during the fall and winter of 1903-04? A. $365.64.

"(7) What was the highest market value of the timber cut

Bretz v. R. Connor Co. 140 Wis. 239.

on plaintiff's land, after it was manufactured into lumber at Auburndale, Wisconsin, and while in defendant's possession? A. $1,546.25."

Both parties moved for judgment on the verdict. The court denied defendant's motion and ordered judgment for the plaintiff on the verdict for $365.64. Judgment was entered accordingly in favor of the plaintiff against the defendant, from which this appeal was taken.

For the appellant there was a brief by Goggins & Brazeau, and oral argument by B. R. Goggins.

For the respondent the cause was submitted on the brief of L. M. Sturdevant, attorney, and C. B. Edwards, of counsel.

KERWIN, J. It is first contended by appellant that the deed conveyed an absolute title in the timber to defendant, and therefore the subsequent deed to plaintiff conveyed only the remainder of the estate. This contention is denied by respondent, and he insists that only such timber as was removed before April 15, 1903, passed to defendant by the deed to it. Both parties rely upon the same authorities to sustain their respective positions under this head. The question is an important one and not free from difficulty, if we should regard it unsettled in this state. There is much conflict of authority in other jurisdictions, and much force in the position of appellant to the effect that the deed to defendant conveyed an absolute title to the timber described in the deed and not such as should be removed within the two years specified. The court, however, is forced to the conclusion that, under the settled doctrine in this court, by a conveyance of timber similar to the one in the deed to defendant only such timber passes by the deed as is removed during the time specified in the deed. Golden v. Glock, 57 Wis. 118, 15 N. W. 12; Hicks v. Smith, 77 Wis. 146, 46 N. W. 133; Williams v. Jones, 131 Wis. 361, 111 N. W. 505; Peshtigo L. Co. v. Ellis, 122 Wis.