Denniston v. Unknown Owners

| Wis. | Jan 15, 1872

Lyon, J.

The plaintiff claims to be the owner of a large number of parcels of land in the county of St. Oroix, containing in all nearly seven thousand acres, by virtue of a certain tax deed dated March 27, 1868, executed to him by the clerk of the board or supervisors of that county, and which deed was duly recorded on the 30th day of June, 1868. These lands were assessed for taxation in the year 1863, were returned delinquent to the county treasurer for the taxes of that year, and were duly sold by him in 1864. The deed thereof to the plaintiff was executed upon the surrender by him of the treasurer’s certificates of such sale. Such deed, and all of the proceedings prior thereto, seem to be in regular form.

This action was brought by tbe plaintiff, under tbe statute, for tbe purpose of barring tbe former owners of tbe lands described in sucb tax deed, and those claiming under them, of all right, title, interest or claim in sucb lands. Tbe complaint sets out tbe tax deed, and is in tbe usual form of complaints in sucb actions.

Tbe action is in form against “ tbe unknown owners ” of tbe lands affected by it, and service of tbe summons was made by publication thereof pursuant to tbe statute. Tbe former owners of all sucb lands,’ each of whom owned a portion thereof in severalty, appeared and severally answered tbe complaint, except that tbe trustees of tbe estate of a deceased former owner answered jointly as such trustees. Each answer contained, amongst other things, an averment that none of tbe lands to which it relates were liable to taxation in 1863 ; and each answer also contains a full and detailed statement of tbe facts hereinafter stated in support of sucb averment.

Concerning those facts there is no contest between tbe parties. It is conceded that all of tbe lands in controversy were granted by tbe United States to this state to aid in the improvement of tbe Eox and Wisconsin rivers, and that tbe defendants are severally tbe owners of tbe lands claimed by them respectively, unless their title thereto has been divested by sucb tax deed.

Tbe circuit court held that the tax deed was valid, and gave judgment for tbe plaintiff in accordance with tbe prayer of tbe complaint Tbe defendants have all appealed therefrom to this court.

From this brief statement of tbe case it is apparent that tbe controlling question to be determined is, Were, tbe lands in controversy liable to taxation in 1863?

It is quite unnecessary to give a detailed history of tbe legislation by congress and in this state concerning tbe lands granted to tbe state to aid in tbe improvement of tbe Eox and Wisconsin rivers. It is sufficient to say that when chap. 112 of tbe general laws of 1856 was enacted, tbe title to tbe land in controversy in this action was in tbe state of Wisconsin, as trustee for tbe purposes expressed in tbe several acts of congress-making sucb grant. It is conceded tbat, until tbe law of 1856 was enacted, tbe lands were not taxable. Did tbey become liable to taxation by virtue of tbat law ? If so, tbey were properly assessed in 1863. If not, inasmuch as tbeir status remained unchanged until 1866, except as it was affected by tbe act of 1856, tbey were not taxable in 1863.

Tbe act of 1856 granted to tbe Fox and Wisconsin Improvement Company all tbe lands then unsold which bad theretofore been granted by congress to tbe state, in aid of such- improvement, of which tbe lands in controversy were part, but subject to certain conditions; one of which conditions was, that within ninety days after tbe passage of tbe act tbe company should make a deed of trust to three trustees, to be appointed by tbe governor with tbe assent of'the company, conveying sucb lands so granted to tbe company by tbe state, and all other property, rights and franchises belonging to tbe company, to sucb trustees and tbeir successors, in trust for certain uses and purposes therein expressed, amongst which are tbe following; 1st. To secure to the state tbe faithful application of all moneys arising from tbe sale of sucb lands to tbe construction and completion of tbe works of improvement contemplated by tbe act as therein provided, and to tbe payment of all outstanding unpaid evidences of indebtedness issued on tbe part of tbe state for or on account of said improvement, and interest thereon. 2d. For the payment of any bonds theretofore issued, or tbat might thereafter be issued by tbe company, on account of tbe improvement; and 3d. A certain trust relative to tbe improvement of tbe Wisconsin river. Tbe fourth section of tbe act gave tbe trustees power to sell tbe land on the requisition of tbe company, but under stringent restrictions to secure tbe application of tbe proceeds to tbe uses and trusts created by tbe act. It does not appear tbat this power was ever called into requisition, or tbat any land was sold under it.

Tlie company executed the trust deed required by the act, to trustees duly appointed, and the title to the lands described in the complaint remained thereafter unchanged, until the same were sold by the trustees in 1866, pursuant to a decree or judgment of the circuit court for the county of Fond du Lac, and pursuant also to certain other provisions of the act of 1856.

Did the act of 1856, and the trust deed executed by the company pursuant to the requirement of that act, divest the state of its title to these lands, so as to render them liable to taxation under the general laws of the state ?

When that act was passed, the state held these lands charged with the trust that the proceeds thereof should be applied to the improvement of the navigation of the Fox and Wisconsin rivers and uniting them with a canal at or near the portage, and to no other purpose, and the state was restricted by the terms of the grant from making sales of the land any faster than the work on the improvement progressed.

The state attempted to make the improvement by appointing a board of public works to supervise and carry it on, This was in 1848. The plan was a failure, and in 1858 was abandoned, but not until an indebtedness to quite a large amount had been contracted on account of the improvement. In 1853 the legislature granted the unsold lands so held by it in trust to the Fox and Wisconsin Improvement Company, on condition that the company should only have the title to the lands they paid for at the rate of one dollar and twenty-five cents per acre, which payment might be made to the state treasurer in outstanding evidences of indebtedness against the improvement funds, or in United States or any state stock at their market value. The company undertook to pay off all such indebtedness, and complete the improvement, pay all indebtedness of the state as trustee on account thereof, settle with and pay contractors, etc.; and the stockholders of the company were required to give bonds to the state in the sum of $25,000 each, condi tioned for the performance of such agreements and covenants of the company within three years from the passage of the act. The original grant by congress was made in 1846, and did not include the lands in controversy in this action.

But by another act passed in 1854, and by an explanatory resolution of congress, approved March 3d, 1855, the grant was largely increased; and, under the last act and resolution, the title to the lands described in the complaint became vested in the state, but subject to the same trusts, and the same restrictions upon the sale thereof, as were the lands granted by the act of 1846.

When the act of 1856 above mentioned was passed, tlie time limited for the Improvement Company to complete the work and to pay and discharge the debts and liabilities against the improvement fund, had expired, and the work remained unfinished, and the debts unpaid.

In disposing of the additional land granted to the state, it is natural to suppose that the legislature intended to secure the accomplishment of these most desirable objects. It must be presumed that by the act of 1856, the legislature intended to so dispose of these lands as to secure the completion of the work as soon as practicable, and also the payment of all lawful claims and demands against the improvement fund. In no other way could it fully discharge its obligations to the United States, which it had voluntarily assumed.

The state must perform its functions through the instrumentality of duly appointed officers and agents. In this way alone could it improve the navigation of these rivers, and unite them by a canal. By the acts of 1853 and 1856, the Eox and Wisconsin Improvement Company became the agents of the state to make the improvement required by the act of congress granting these lands to the state. The legislature was willing that the company should have all of the lands so granted to the state, when it should perform its contract with the state, and not before. It did not propose to pay the company in advance. But, for the purpose of guaranteeing performance by the state, and securing the prompt conveyance of these lands to the company when it should lawfully he entitled thereto, the act provides for the appointment of other agents, to wit: the three trustees, above mentioned, to make a conveyance of the lands to the company when it should have fully performed its contract with the state, or to sell and convey the lands and apply the proceeds for the benefit of the state and of all parties interested therein, as provided in the act and in the trust deed executed by the company pursuant thereto.

To accomplish these objects it was not necessary to vest the title to the lands in the company or the trustees. In view of the obligations of the state to the United States in respect to the original grant it was not wise to do so. That the legislature did not intend to divest the title of the state by the law of 1856, is apparent from certain provisions contained therein. Sec. 10 provides, among other things, as follows: “ When all the purposes of this act are accomplished, and not before, the said trustees shall convey to the company the interest of the state in the said lands, work and other property herein mentioned.” The record shows that the purposes of the act were not all ae-complished until long after 1863.

Again, it is enacted in sec. 15, that the provisions of the Revised Statutes relating to. trusts, trustees and trust estates, shall not be applied to the trusts provided for in that act. It seems quite clear that by this provision the legislature intended to guard the state against any claim that might be made, that the act divested the title of the state by applying to the act, and the trusts which it created, the statutory doctrine of uses and trusts.

Construing the law of 1856, and the whole of it, in the light of the obligations of the state to the general government, and with a due regard to the circumstances which led to its enactment, and the objects designed to be accomplished by it, we are satisfied that the legislature did not intend to divest the’ title of the state to the lands in controversy, but that it only intended to confer upon tbe trustees a power in trust in relation thereto, leaving tbe title and ownership of tbe state intact.

We are also of opinion that tbe act fully carries out tbe intention of tbe legislature in that behalf.

It is true that a conditional grant, in form, was first made to tbe company, but it did not take effect until tbe execution of tbe trust deed, which instantly passed tbe same to tbe trustees. No principle is better settled than that tbe company, under such circumstances, took no estate in tbe lands. Tbe grant and tbe execution of tbe trust deed are parts of tbe same transaction, and can operate only as tbe legislature intended that they should operate. Rees v. Ludington, 13 Wis., 281.

Upon tbe whole case, we are of tbe opinion that tbe legal effect of tbe act of 1856 is precisely tbe same that it would have been bad it simply authorized tbe commissioners of tbe school and university lands, or any officer or agent of tbe state, to sell tbe lands in controversy, and apply tbe proceeds of such sales to tbe uses and purposes specified in tbe act. Had tbe act so provided, no one would contend for a moment that tbe commissioners, or officer or agent thus authorized would thereby take any estate or beneficial interest in tbe lands. In such case tbe state would continue to be tbe owner of tbe lands, although other parties might have an interest in tbe proper application of tbe proceeds thereof.

We conclude, therefore, that tbe state was tbe owner of the lands described in tbe complaint in 1863, and that tbe same were not liable to assessment and taxation in that year.

These views render it unnecessary to consider tbe question of tbe right of tbe state to subject tbe lands to taxation before tbe trusts upon which the same were granted by congress to tbe state were fully executed.

By the Ccmt — Tbe judgment is reversed, and tbe cause remanded with directions to tbe circuit court to dismiss tbe complaint