Lemieux v. Agate Land Co.

214 N.W. 454, 193 Wis. 462, 1927 Wisc. LEXIS 301

• Court: Wisconsin Supreme Court
• Decided: June 20, 1927
• Status: Published

Opinion

Eschweiler, J.

Upon the issue presented by appellants’ appeal, namely, plaintiffs’ assertion of title to all or a part of what is known as Wisconsin Point in the city of Superior and the counter assertions of title by defendants, the record presents a great deal of testimony from a vast number of witnesses and evident care and discrimination by the trial court in arriving at its determination.

If the DuBay homestead entry in March of lots 1 and 2, section 34, of 142.57 acres with the patent following on July 22, 1854, and the Bullen homestead entry in February, 1854, of lots 1 and 2, section 28, and lot 1, section 27, of 104.77 acres, final patent, however, not being issued until November, 1891, were valid and regular and good title thereby conveyed, that virtually and adversely disposes of the main contentions by plaintiffs.

Nothing of a serious nature is or can be urged against the title to the property covered by the DuBay entry. All proceedings connected with this entry and the patent issued thereon in 1854 are regular and sufficient on their face. Many purchasers occupied in good faith and in belief of the validity of such patent. The defendant Agate Land Company became a good-faith purchaser from such, and at no time prior to 1918 does there appear to have been any substantial assertion of adverse claim to such property by or through Frank Lemieux, the only source through whom plaintiffs now assert title.

Under the Bullen entry the situation was somewhat diL ferent. As to this, plaintiffs assert its invalidity, but that if held valid as a good-faith entry as against the government, then it was in trust for Frank Lemieux.

The granting of a patent on Bullen’s application of February, 1854, for 104.77 acres was long delayed:

First, by an executive order in March, 1854, declaring an intention of reserving a substantial part of such land for military purposes, it being right at the then entrance to the large, important, and landlocked harbors of the now large cities of Superior, Wisconsin, and Duluth, Minnesota. This asserted reservation was, as to part of the land, withdrawn, and as to the rest held invalid as against the Bullen entry.

Second, because of other applications for the same land or portions thereof; one by Frank Lemieux himself in 1891 seeking to have eighty acres assigned to him under his rights as an Indian of the half blood under the treaties and an act of February 8, 1887; in such application, however, he made no claim such as is now presented to the effect that Bullen’s entry was in trust for him, Lemieux, but did allege occupancy since 1849. After much delay and many hearings and under a federal statute of May 8, 1891, confirming the granting of patents where lands had been purchased and occupied in good-faith reliance upon entries, thereafter contested, it was determined by the Department of the Interior that said entry of Bullen should be recognized as valid and a patent issue, which thereupon did issue in November, 1891.

Such a decision of the Interior Department, acting as an arm of the Executive, being in a matter over which it had proper jurisdiction and power, after full opportunity to be heard had been accorded all who might or did assert title in their own right or who contested the validity of the Bullen entry, followed as it was by the patent by the Executive, ended, and for all time, any or all questions as to the original homestead entry, the basis of and essential to the validity of the chain of title following such entry. Such controlling effect, in the absence of fraud, is given to decisions of the Interior Department on questions of title of lands from the government up to and including the issuing of the patent by virtue of federal statute and decisions. Cameron v. U. S. 252 U. S. 450, 460, 40 Sup. Ct. 410; Ross v. Day, 232 U. S. 110, 116, 34 Sup. Ct. 233; Love v. Flahive, 205 U. S. 195, 198, 199, 27 Sup. Ct. 486; Hawley v. Diller, 178 U. S. 476, 490, 20 Sup. Ct. 986; Oregon Basin O. & G. Co. v. Work, 6 Fed. (2d) 676; Edenborn v. U. S. 5 Fed. (2d) 814; McCord v. Hill, 117 Wis. 306, 309, 94 N. W. 65, affirmed 195 U. S. 395, 25 Sup. Ct. 792. See, also, U. S. v. Minnesota, 270 U. S. 181, 206, 46 Sup. Ct. 298. The same effect is given to rulings on questions of fact by other executive departments. Postmaster General: Leach v. Carlile, 258 U. S. 138, 140, 42 Sup. Ct. 227; Secretary of Agriculture: Houston v. St. Louis I. P. Co. 249 U. S. 479, 480, 39 Sup. Ct. 332, and cases there cited; a special tribunal such as the court of claims: U. S. v. Minnesota, 270 U. S. 181, 199, 46 Sup. Ct. 298.

Plaintiffs contend that we should hold the Bullen and DuBay entries of 1854 invalid because premature, in that, though made after the government survey of August, 1853, yet both were made before the map was, as they claim, regularly filed in the proper land office, and that therefore until the time of such filing there was in existence no lawful support for such applications; and in that such entries were made before the exclusive treaty rights of the Indians were ex7 tinguished.

We see no force in such positions. The record shows a filing of the survey in September, 1853, and not in 1856. Clearly no one other than the United States could now properly be heard to assert any such contention, eyen if it had any weight. Surely it cannot now be entertained as against good-faith purchasers. The delay of more than fifty years in its assertion would be sufficient to destroy its effectiveness. The ultimate fee being in the United States (Jones v. Meehan, 175 U. S. 1, 8, 20 Sup. Ct. 1), the executive order of removal in 1850 terminated the exclusive right to occupancy, and the United States could give good title.

• Plaintiffs strenuously insist that there was such, adverse possession of all or part of Wisconsin Point by Frank Lem-ieux and themselves that thereby they have good title. The great amount of testimony offered on this proposition and evidently heard ancb considered patiently by the trial court need not be reviewed. There was nothing which needs present consideration tending to show any inclosing by fence or other recognized form for asserting title or right as to Wisconsin Point as a whole. The fences erected from time to time at various points on the island did not mark off any definite portions thereof as being held under claim of ownership by Frank Lemieux, save so much as inclosed, for varying periods of time, the respective houses he built and occupied after the abandonment of the first house or the gardens in connection with such houses. And as to all of these inclosures they were within that portion of the early plat which was dedicated as a public park and accepted as such by the city except a small strip which extended into a public street adjoining such park. The concesson is advisedly and frankly made that as against the defendant city, accepting property for a public purpose under such a plat and in the situation here disclosed, the plaintiffs could have acquired no title by adverse possession, either their own or that of their ancestor.

Neither could there be adverse possession prior to the issuing of the patents, for such would be the asserting of a claim of right against the sovereign. Redfield v. Parks, 132 U. S. 239, 244, 10 Sup. Ct. 83; Northern Pac. R. Co. v. Slaght, 205 U. S. 122, 123, 27 Sup. Ct. 442; Hays v. U. S. 175 U. S. 248, 260, 20 Sup. Ct. 80; Gibson v. Chouteau, 13 Wall. (80 U. S.) 92, 99; Whitney v. Gunderson, 31 Wis. 359, 376.

Furthermore, the delay in asserting in any proper manner, at any time prior to the commencement 'of this action in 1919, of any such claim in face of the known occupancy of all this land by others in reliance upon the record title, is of itself such laches as to defeat the present assertion by plaintiffs. Moran v. Horsky, 178 U. S. 205, 208, 20 Sup. Ct. 856. So held as to one claiming title under Indian treaty and of Indian blood in Felix v. Patrick, 145 U. S. 317, 332, 12 Sup. Ct. 862, and the same in Lemieux v. U. S. 15 Fed. (2d) 518. There is here no such situation of reliance by defendant upon a deed directly void because in violation of some express statute, as to which the doctrine of laches does not apply as held in Ewert v. Bluejacket, 259 U. S. 129, 138, 42 Sup. Ct. 442.

Plaintiffs also claim that although by the treaty of 1842 the Indians ceded the title of all this territory to the United States, nevertheless their right of occupancy being in such treaty expressly recognized as continuing until their removal was accomplished by executive order, such right of occupancy was never terminated; and therefore the continuous living by Frank Lemieux on the land, and the continued living there by some of his children after his death until the commencement of this action, was such an occupancy under the treaty as would prevent there being any lawful disposal by the United States of this property or any possible good title in any one other than the plaintiffs. Reliance is placed upon recitals that there was no such executive order of removal found in two cases: U. S. v. Thomas, 151 U. S. 577, 14 Sup. Ct. 426 (in 1894), presenting the question of federal jurisdiction to try an Indian charged with murdering another Indian on one of the reservations in this state; it recited (p. 582) that the Indians have never been removed from lands thus ceded, and no executive order has ever been made for their removal and no change in their occupancy except by the treaty of 1854; and it was held (p. 584) that, in the absence of any proof that the Chippewa Indians have surrendered their right of occupancy, the right still remains with them as against any right of occupancy by the state of Wisconsin, and that occupancy by the Indians, so far as the court was informed, had never been released to such lands. Again, in U. S. v. J. S. Stearns L. Co. 245 U. S. 436, 38 Sup. Ct. 137 (in 1918), an action brought to cancel patents issued by this state to the Stearns Lumber Company for certain lands in the La Pointe Indian reservation, again referring to the treaty of 1842 and the privileges of occupancy until removed by the President, it recited (p. 437) : “The President did not remove the Indians.” Upon these two cases it is argued that the federal courts have taken, and this court must take, judicial notice that there was no termination of the right of occupancy by any executive order. In the present case, however, there was offered and received in evidence that which was certified to be a copy of an executive order of removal purporting to be signed by President Taylor February 6, 1850.

We find no grounds upon which the validity of such a document or its competency as evidence can properly here be .questioned. That it evidently was not presented and offered in evidence in the two cases just above quoted cannot detract from its validity when now offered and properly received. What was said by way of recital in those two cases, supra, must of course extend no further than the facts presented in each. We must therefore hold that any form of title to this land then possessed by them (see Jones v. Meehan, 175 U. S. 1, 8, 20 Sup. Ct. 1, supra) was ceded by the Indians under the treaty of 1842-1843, and their right of occupancy, so far as it would interfere with the lawful occupancy of those claiming by patent from the United States is concerned, was terminated upon said executive • order of 1850.

The claim that the Bullen entry was in trust for Frank Lemieux was properly denied by the court below. Such claim rested upon the testimony of the plaintiff Maggie Maxtineau that she, then a child of about five years, knew that in the winter of 1853-1854 Bullen lived with her father and that no whites built or lived on the Point prior to 1883 or 1884, the time of Bar don’s occupancy. The validity and good faith of this Bullen entry was in contest before the Interior Department for many years, Lemieux himself being a party to the proceeding, making claim himself, but in no manner asserting any such claim of trust relationship, as would have been eminently proper for him to then and there assert if true. One of the specific objections to Bullen’s entry, as shown from the recitals in the records of the Interior Department, was that he had made such homestead entry for the company by which he was then employed and not in good faith for himself. The decision of the department that the Bullen entry must be held valid must be deemed conclusive against plaintiffs on all these points. The long delay in asserting such a claim is also an effectual bar.

Other questions presented by appellants on their appeal we do not deem to need specific mention or discussion. . .

The trial court gave plaintiffs title to a four-fifths interest in the small parcel of land that had been used for burial purposes. Defendant Agate Land Company contends that such determination ought not to stand. We must uphold them on this point. Any claim by adverse possession upon which the court could rest title in the plaintiffs to this piece of land would have to be by reason of the assertion of an exclusive ownership for twenty years and more in Frank Lemieux as an individual and in his own right as such an individual. There was here, however, the assertion for the Fond du Lac band of Indians of a tribal right as distinguished from the assertion of an exclusive right of an individual member of that band. It was clearly such a tribal right during the lifetime of Chief Osagie, Frank Lemieux’s father-in-law, the recognized head of the band, and who made his home with said Lemieux during many of the later years. There is nothing to show any change in the situation as to the claim of ownership or as to exclusive possession after the death of Chief Osagie such as would change the tribal claim from then on to an individual claim of Frank Lemieux or by his heirs tracing through and dependent upon some right in Lemieux. The assertion of plaintiffs, therefore, to individual ownership cannot be maintained. What rights, if any, to this plot of ground, no longer dedicated to or used for burial purposes since the removal of the bodies therefrom by consent in 1918, may be remaining in the Fond du Lac band of Chippewa Indians, is not before us, and we express no opinion on the point.

By the Court. — Judgment affirmed on plaintiffs’ appeal; reversed on defendants’ review. Appellants to pay clerk’s fees on this appeal. No other costs allowed.