101 Wis. 479 | Wis. | 1899
The evidence is voluminous, covering nearly 200 printed pages. No attempt will be. here made to analyze such evidence or to discuss it in detail.
To support such title, the plaintiff relies upon the facts that the S. W. fractional quarter of section 27, and the S. E. fractional quarter of section 28, were entered in 1836 by one Lyon; that a patent was issued therefor to one Nicholas, as grantee of Lyon, August 10, 1837, and the same was recorded May 26, 1840; that L. J. Farwell gave a quitclaim deed thereof to one Ring, in 1851; that Nicholas gave Far-well a warranty deed thereof in 1S54; and that each of such conveyances was recorded about the times they were, respectively, given; but no conveyance is shown from Ring, nor from Farwell, aside from the quitclaim deed mentioned. Such conveyances, and the government survey and meandered line, were put in evidence, it -would seem, for the purpose of showing that the premises were subject to taxation, and hence that the tax deeds under which the plaintiff claims title were valid. One of such tax deeds was issued to one W. W. Tredway, May 14, 1874, and recorded four days afterwards, and purported to convey, among other premises, the “ east part of southeast -J of section 28, town
Under our statutes, the question of uncertainty in the description in tax deeds must be determined by the same rules as are applicable to ordinary conveyances between grantor and grantee. Stats. 1898, sec. 1047. Meade v. Gilfoyle, 64 Wis. 18, 22. Of course, such tax deeds, like other deeds, are to be construed with reference to the actual rightful state of the property at the time of their execution; and, for such purpose, extrinsic evidence is often admissible in order to place the court in the position of the parties at the time of making the deed, and thus enable the court to intelligently •construe the language employed. Messer v. Oestreich, 52 Wis. 689, 691; Meade v. Gilfoyle, 64 Wis. 23, and cases there cited; Reinhart v. Oconto Co. 69 Wis. 352. But when, in the light of contemporaneous facts and circumstances, it is impossible to definitely locate the premises so attempted to be described, then courts are, necessarily, compelled to hold the conveyance void for uncertainty. Thus a tax deed has been held void for uncertainty which described the land as M lot 3, and the northeast quarter of the northwest quarter,
Applying such rules to the case at bar, it is very obvious that the tax deed to Schlimgen is not available to the plaintiff in this controversy. It called for 100 acres in the west part of the quarter section, except the lake, which, of course, means the lake as it existed when the deed >vas made. The controversy here is as to whether the locus m quo did or did not constitute a portion of the lake so expressly excepted. The court found that it did; and so, eAren if the’ uncertainty in the amount of lake, so excepted, and the uncertainty in the location of the south line and the east line, were not such as to avoid the deed, yet it gave the plaintiff no rights as against the defendants in this controversy. But the question whether the description in the tax deed to Tredway does or does not, on its face, cover the premises in controversy, is not so obvious. One hundred and forty acres in
It may be conceded that a patent from the United States, purporting to convey swamp lands, or mineral lands, or lands subject to pre-emption or homestead entry, cannot be impeached in an action at law, — much less collaterally. Johnson v. Tousley, 13 Wall. 72; French v. Fyan, 93 U. S. 169; Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Smelting Co. 106 U. S. 447; Ehrhardt v. Hogaboom, 115 U. S. 67. But, as indicated in some of these cases, the Interior department has no power to dispose of any portion of the public domain, except as authorized by Congress. The statutes of the United States prescribe the manner in which the public lands must
By admitting the state into the Union, the federal government, in effect, conceded that the state should have the title to, and absolute dominion over, alLsuch lakes within its border, subject only to the constitution of the United States and acts of Congress, and treaties made in pursuance thereof, and subject to certain limitations on the power of the state. Priewe v. Wis. State L. & I. Co. 93 Wis. 534. Thus, it has been held that “ Congress has not undertaken, by general laws, to dispose of lands below high-water mark of the tide waters in a territory, but, unless in case of some international duty or public exigency, has left the administration and disposition of the sovereign rights in such waters and- lands to the control of the states, respectively, when admitted into the Union.” Shively v. Bowlby, 152 U. S. 2. So, it has been held that “grants by the United States of its public lands
The facts in the case at bar, as to the extent and depth of the waters on the premises in question, prior to the construction of the Farweil dam, are much more favorable for regarding the same as a portion of the lake than in the case last cited. Obviously, in so far as the patent covered such portions of the lake, it was issued by mistake or without authority, and hence was inoperative and void, although it may have been valid in so far as it covered dry land. Lamprey v. State, 52 Minn. 181. But, even if the patent is only voidable by other and appropriate proceedings, still it is not available to the plaintiff, under the facts found in this case, for reasons already stated. Since the title to all portions of the lake has at all times been either in the United States or the state of Wisconsin, it follows that it has at all times been exemptfrom taxation. R. S. 1878, and Stats. 1898, sec. 1038, subd. 1. The tax deed to Tredway, therefore, assuming that it was not void for uncertainty, yet, in so far as it covers, or
The question as to whether a riparian owner may rightfully fill in or build out to navigable water, suggested by couusel, is not here involved.
As to the Catfish creek, the federal statute," as it has existed for more than a century, declares that “ all navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.” R. S. of U. S. sec. 2476; Shively v. Bowlby, 152 U. S. 32, 33. The federal statutes, regarding the duties of surveyors of public lands, cited, apply to such navigable streams. It is conceded that the
We must hold that the defendants, by going upon the waters in question with their boats, as found by the court, did not trespass upon the lands of the plaintiff.
By the Court.— The judgment of the circuit court is affirmed.