Whitney v. Gunderson

31 Wis. 359

Opinions

The following opinion was filed at the January term, 1872.

Oole, J.

It appears that the land in controversy is a part of a tract which was known and described in the report of the commissioners to examine titles and claims in the territory of Michigan, under the act of congress of February 21, 1823 (3 U. S. Stats, at Large, p. 724, chap. 10), as the “ vacant strip ” situated between private land claim No. one, confirmed to Jacques Porlier, and private land claim No. two, confirmed to Louis Grrignon, on the west side of Fox river at Grreen Bay. Alexis Grardapier made a claim before the commissioners to a tract lying on the west bank of Fox river, and more particularly described as being a vacant strip lying between a tract number one, confirmed to Jacques Porlier, on the north, and tract number two, confirmed to Louis Grignon, on the south, commencing at low water mark and running west eighty ar-pens, and in width three arpens on the river. American State Papers, Public Lands, Vol. 4, p. 722. This claim was confirmed by the commissioners, providing it did not interfere with any confirmation before made by them (id., p. 723.) In the act of congress (chap. 28, p. 260, 4 U. S. Stats, at Large) confirming claims purporting to be confirmed by the commissioners or recommended for confirmation, among other things it was enacted, that the secretary of the treasury, under the direction of the president of the United States, be authorized and required, as soon as might be, to adopt such measures as might be necessary to give full effect to the reports of the commissioners enumerated, etc.; but with the proviso that the confirmations made by the act should not be construed to extend “ to any lands occupied by the United States for military purposes.” The defendant claims that this act of congress confirmed Gardapier’s title to the entire vacant strip between lots and and two. But it appears that in 1860 congress passed an act for the relief of Pierre Grignon (chap. 125, p. 857, 12 U. S. Stats, at Large), in which is confirmed to him a piece of land lying on the west side of Eox river at Green Bay, immediately below the first creek that empties into said river, being about fifteen acres front on said river and extending back indefinitely. The commissioners had, in their report, confirmed this tract to Pierre Grignon, providing “it shall not interfere with a confirmation heretofore made to Jacques Porlier, or with a confirmation made by this board to Alexis Gardapier.” Am. State Papers, supra, p. 721. And in 1866 congress passed another act (chap. 2, p. 615, 14 U. S. Stats, at Large), which provided that the claim of Alexis Gardapier to the tract of land described in the report of the commissioners “ as lying on the west bank of Eox river, and more particularly known as being a vacant strip lying between a tract number one, confirmed to Jacques Por-lier, on the north, and tract number two, confirmed to Louis Grignon, on the south, commencing at low water mark and running west eighty arpens and in width three arpens on the aforesaid river,” be confirmed, and the commissioner of the general land office was authorized to cause the said tract to be surveyed in the same manner that other private land claims at Green Bay had been surveyed, and the law directed that a patent should issue therefor.

In pursuance of these acts of congress, the commissioner of the general land office caused a survey to be made of the private land claims of Alexis Gardapier and Pierre Grignon, which, it appears, had not before been surveyed for the reason that they were formerly embraced within “Port Howard Military Reservation.” By this survey the Gardapier tract was set off of the same width on the river as confirmed by the commissioners, and the remainder of the vacant strip was set off for Pierre Grignon, according to the act of 1860 above referred to. And the land in dispute is a portion of the tract thus assigned to Pierre Grignon.

In view of this legislation by congress, it seems to us to be impossible to support the proposition contended for by the defendant’s counsel, that Gardapier acquired title to the entire vacant strip between private claim number one and private claim number two. Eor, by the act approved April 17, 1828 (chap. 28, supra), congress expressly reserved all lands occupied by the United States for military purposes from the operation of that enactment. And that the land described “ as vacant strip ” was embraced formerly in the Port Howard military reservation, is a fact, we think, abundantly established by the evidence.

And this brings us to the principal defense set up in the answer, which is, that the defendant and those under whom he claims entered into the possession of the premises in dispute in this action under a claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance, and had continued in the possession under such claim adverse to the claim of the plaintiff, for more than forty years before the commencement of the suit.

As this land was reserved by the United States for military purposes until the act of 1860 was passed, the question arises, Gan there be any such thing as an adverse possession against the government or its patentee before that time ? Upon general principles of law we should say there could not be any such adverse possession; but upon this subject we have a direct adjudication of the supreme court of the United States in the case of Gibson v. Chouteau et al., recently decided. That was an action of ejectment, brought originally in the state court of Missouri, in which the plaintiff claimed to recover on the strength of a patent issued to his immediate grantor. The patent was founded upon a location made by the representative of one O’Carroll under an act of congress of February 17th, 1815, passed for the relief of parties whose lands in the county of New Madrid Rad been injured by an earthquake in 1812. The location was made in June, 1818, on bebalf of one Wilt, who bad succeeded to the interest of 0’Carroll The land had been previously surveyed by a deputy surveyor of the territory ; and in 1841 the survey and plat thereof were returned to the recorder, who issued thereon a patent certificate in favor of O’Oarroll or his legal representatives. This survey did not meet the approval of the commissioner of the general land office, as it did not show its interferences with conflicting claims; and under his instructions a new survey and plat were made in 1862, upon which the patent issued. Among other defenses, the defendants sought to defeat a recovery upon the ground that the evidence showed that they had been in possession of the demanded premises more than ten years previous to the issue of the patent, which was the period prescribed by the statute of Missouri within which actions for the recovery of real estate must be brought. The defense under the statute of limitations having been sustained by the supreme court of the state, the cause was removed by writ of error to the supreme court of the United States, under the judiciary act of 1789. And the supreme court held, that the occupation of lands derived from the United States, before the issue of their patent, for the period prescribed by the statutes of limitation of a state for the commencement of actions for the recovery of real property, is not a bar to an action of ejectment for the possession of such lands founded upon the legal title subsequently conveyed by the patent; that congress has the absolute right of prescribing the times, conditions and mode of disposing of the public domain, without any interference by state legislation; and that this right necessarily prohibits the states, by legislation, from depriving the grantees of the United States of the possession and enjoyment of the property granted by reason of any delay in the transfer of the title after the initiation of proceedings for its acquisition; that the consummation of the title was not a matter which the grantees could control, but one which rested entirely with the government; that with the legal title, when transferred, goes the right to possess and enjoy the land; and that it would amount to a denial of the power of disposal in congress, if these benefits, which should follow upon the acquisition of that title, could be forfeited because they were not asserted before that title was issued.

This is the reasoning of the supreme court upon this question of adverse possession; and to our mind it is entirely satisfactory and conclusive. The continued occupation and possession of the premises, therefore, by the defendant and those' under whom he claims, cannot be held to be adverse to the plaintiff’s right derived through the act of congress of 1860 and the patent issued in 1870 in pursuance thereof. Prior to 1860, the title, legal and equitable, was in the United States by reason of the reservation of the land for military purposes.

The defendant offered in evidence and relied upon various tax deeds, under which Elisha Morrow claimed title to the land occupied by the defendant. It is said on the part of the plaintiff, that the lands were not taxable prior to the issue of the patent, and that therefore all tax sales prior to 1870 were void. This position, we think, is untenable. The law of congress of 1860 confirming to Pierre Grignon this parcel of land changed the ownership of the property. The land was no longer a part of the public domain, but became private property and liable to taxation like other real estate. This was expressly ruled in Witherspoon v. Duncan, 4 Wallace, 210, in a strictly analogous case. It was there held that the right to tax attaches as well to donation entries as to cash entries, and exists as soon as the ownership is changed in either case by the particular tract being segregated from the mass of public lands and becoming private property. And that the law of congress of 1860 had the effect to confer upon and vest in Pierre Grignon the entire equitable title and ownership of the tract therein described, seems to us quite plain and obvious. The mere naked legal fee remained in the United States until the patent issued, but all the equitable and beneficial interest was in Pierre Grignon, bis beirs, legal representatives or assigns. Tbe land, therefore, became taxable after June 13, 1860. Tbe lands being subject to taxation after this time, tbe question arises, Were the tax deeds available to prove title in Morrow ? And this, of course, depends upon tbe further question, whether Morrow could acquire a tax title. Upon tbe facts appearing in tbe case we think be could not.

On tbe matters stated in tbe answer it must be assumed that Morrow was in possession of tbe lands when tbe taxes were assessed, claiming to be tbe owner, Eor tbe answer sets rrp, as before remarked, as a defense, that tbe defendant and those under whom be claims bad been in tbe continual occupancy and possession, claiming title, for over forty years prior to tbe commencement of tbe action. If Morrow was in possession claiming title, we must presume, under tbe law requiring tbe officer to assess tbe lands in the name of tbe owner or occupant, that tbe land was assessed to him. It then became bis duty to pay tbe taxes, and be could not permit tbe lands to be sold for such taxes and obtain a tax deed for tbe purpose of destroying an outstanding title. Bassett v. Welch, 22 Wis., 175; and Jones v. Davis, 24 id., 229. And tbe same principle would prevent him from acquiring and keeping alive a tax title purchased from Curtis. It appeared that Morrow had obtained a release from Curtis of tbe latter’s title, under sections 39 and 40, chap. 22, Laws of 1859. This was nothing more than buying in a tax title by one against whom tbe taxes were assessed, and who, we may properly assume, was under an obligation to pay them. It was equivalent to, and should have tbe same legal effect as, a purchase by tbe real owner of an outstanding tax title.

An objection was taken to these tax deeds that they were all void for want of a sufficient description of tbe premises. In consequence of tbe views already expressed, this point becomes immaterial; but perhaps we ought to give some indication of our opinion for tbe guidance of the circuit court on a new trial, in case tbe proof should show that Morrow might avail himself of those tax deeds, the presumption that he was .bound to paj the taxes being rebutted by the evidence. And we therefore say that we think the description of the premises in the tax deeds was sufficient. There would probably be no difficulty in ascertaining from the description what premises were conveyed by the deeds.

The court below directed the jury to find for the defendant. What view the court took of the case cannot be determined from the record, further than that the plaintiffs were not entitled to recover. But whether this was because the plaintiffs’ title through the various mesne conveyances produced in evidence was defective, or whether the tax deeds were held to be valid as against the plaintiff, it is impossible to tell. Possibly the court may have thought the original Cardapier claim included the entire vacant strip between lots one and two, and that it was confirmed to him by the act of April 17, 1828. The court refused to give various special instructions asked on the part of the plaintiff ; but under the circumstances we do not feel called upon to notice these propositions seriatim. Our general remarks upon the case sufficiently foreshadow our views in respect to some of them.

The judgment must be reversed, and a new trial awarded.

By the Court.- — So ordered.