I. The instruction which the court refused to give the jury, which was, in effect, that the plaintiff could not recover for injuries to the land because he had failed to prove title thereto, we think was properly refused. The title necessary to be proved in order to maintain the action, is the same as in an action of trespass guare clausum fregit, or in re-plevin for timber cut and removed by a trespasser from the lands of the plaintiff. In either case, if the lands upon which the trespass was committed were vacant and unoccupied, the plaintiff must prove his title thereto, or he cannot recover. But if he was in the actual possession and occupancy of the land when the trespass was committed, he may maintain trespass or replevin, according to the exigencies of the case, without making, any proof of a paper title, unless the defendant prove an adverse title thereto of a higher character than a mere possessory one. Hungerford v. Redford, 29 Wis., 345.
In this case the plaintiff showed himself in actual possession of the land at the time of the injury, and the defendant did not show, or attempt to show, any outstanding adverse title thereto. Hence the plaintiff’s possession was sufficient to sustain the action, and he was not required to establish a higher or better title.
II. The special verdict does not pass upon the question of the alleged contributory negligence of the plaintiff, which is one of the issues made by the pleadings. Were there any testimony in the l-ecord tending to show that he was guilty of any negligence which contributed proximately to the injury of which he complains, the omission of the jury to determine such issue would be fatal to the judgment. Heeron v. Beckwith, 1 Wis., 17, and cases cited in Vilas and Bryant’s Notes (new ed., p. 32); Eldred v. The Oconto Co., 33 id., 133; *75Young v. Lego, 38 id., 206. But we bold, in Hutchinson v. The Chicago & Northwestern R’y Co. (decided herewith), that if the undisputed evidence settles the issue in favor of the prevailing party, the omission of the jury to pass upon it will not work a reversal of the judgment. It is obvious that the rule must be the same where an issue is made on a defense stated in the answer, and there is no testimony tending to prove such defense.
Here, there is really no evidence tending to prove negligence on the part of the plaintiff. Had the question been submitted to the jury, and had they found the existence of such negligence, it would have been the duty of the court to set aside the finding. We conclude, therefore, that the omission of the jury to pass upon that issue is not error.
The foregoing views dispose of all the alleged errors adversely to the defendant, and necessarily result in an affirmance of the judgment of the circuit court.
By the Court. — Judgment affirmed.