Mendota Club v. Anderson
78 N.W. 185
Wis.
1899
Check Treatment
Cassoday, O. J.

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.

1. The defendants except to the fourth finding of fact, wherein it is found that “ the plaintiff has a complete chain of record title to the description contained in the deeds offered in evidence.” Such exception by the respondents is, of course, permissible in support of the judgment. Sec. 3070, Stats. 1898; Maxwell v. Hartmann, 50 Wis. 664; Hoey v. Pierron, 67 Wis. 262; Hackett v. W. U. Tel. Co. 80 Wis. 187.

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*487ship 8, range 9; number of acres, 140.” Tredway conveyed the premises last described to one C. P. Chapman, September 19, 1885; and Chapman conveyed the same to one J. D. Clarke, November 24, 1891; and Clarke conveyed the same to the plaintiff, December 21, 1891; and such conveyances were recorded about the times they were, respectively, made. The other of such tax deeds was issued to one John Scklim-gen, October 26, 1889, and recorded the same day, and purported to convey the “ west part southwest ■£, except lake, section number 27, township number 8, range number 9; number of acres, 100.” December 5, 1891, Schlimgen gave J. D. Clarke a contract for the sale and conveyance of the same, and February 8, 1898, Clarke gave to the plaintiff a quitclaim deed of the same. The defendants contend that each of the two tax deeds under which the plaintiff so claims title is void for uncertainty as to the premises so described.

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, *488less seven, acres, of section 5,” of a specified township. Johnson v. Ashland L. Co. 52 Wis. 459, 465. So, it has been held that a tax deed of lot 1, in block 1, of an addition designated by initials only, and without naming the city or village, Avas fatally defective. Campbell v. Packard, 61 Wis. 88. So, under,an act of the legislature requiring the assessor’s book in the city of Oconto to be kept in a certain way, it was held that, “ notwithstanding such act, ... a description in tax certificates of land in the city of Oconto, as 5 part 5 of lot 4 of section 20, tOAvn 28 north, of range 22 east,’ without referring to said a'ct, or to any book or map made in pursuance thereof, or to any other record, plat, or description, is so indefinite and uncertain as to be fatally defective.” Murphy v. Hall, 68 Wis. 203. So, this court has held that, “ a deed purporting to convey the southeast corner of á certain quarter section of land, and the south-Avest fractional part of the north half of another quarter section, without more definite description as to dimensions, quantity, or location, is void for uncertainty.” Morse v. Stockman, 73 Wis. 89.

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 *489the east part of the S. E. ¿ of section 28 seems to include water as well as land; and hence may, in harmony with decisions of this court, be construed as covering, a strip of equal width off the east part or side of the quarter section. Jenkins v. Sharpf, 27 Wis. 472; Dolan v. Trelevan, 31 Wis. 147; Riha v. Pelnar, 86 Wis. 413. True, the location of the south line is not definitely fixed, and the location of the west line is not definitely fixed; yet it may be that, under one of the rules of law suggested, they were capable of being fixed by extrinsic evidence. For the purposes of this case, it is assumed that they were capable of being so fixed.

2. The question recurs whether the plaintiff, by virtue of the tax deed to Tredway, or any of the deeds or papers in evidence, acquired any special right or title to' any portion' of the premises covered by water, and which the court found to be a part of Lake Mendota. Counsel for the plaintiff contends that the Earwell dam, completed in 1850, raised the water of the lake at that point four feet higher than it was previously; and that it raised the water on the premises in question, at an ordinary stage thereof, some two or three feet higher than it was previously. The court found that before the erection of the dam, and at ordinary stages of water, a portion of the bar west of the Catfish channel was submerged and covered with water to such a depth as to permit rowboats to pass readily from the body of the lake south of the bar to the water north of the bar; and that there was water upon a considerable portion of the area included within the government survey of the two sections mentioned; and that a portion thereof contained bogs; and that, aside from such bogs and hard land near the west side of the Catfish channel, there was an area, nearly as large as now covered by water, which could not, before the erection of the dam, be used for agricultural purposes. It is undoubtedly true that the question whether the title to land, which has once been the property of the United States, has passed, *490must be resolved by the laws of the United States. Wilcox v. Jackson, 13 Pet. 517; Whitney v. Detroit L. Co. 78 Wis. 246, and eases there cited. So, it is well settled that meandered lines must yield, in case of conflict, to section and quarter section lines. Martin v. Carlin, 19 Wis. 454; S. C. 88 Am. Dec. 696; Shufeldt v. Spaulding, 37 Wis. 668; Whitney v. Detroit L. Co. 78 Wis. 245. The supreme court of the United States has held that “meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, :and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows to a demonstration that the wat )v-course, and not the meander line, as actually run on the land, is the boundary.” Railroad Co. v. Schurmeir, 7 Wall. 2S6; Hardin v. Jordan, 140 U. S. 381, To the same effect, Boorman v. Sunnuchs, 42 Wis. 233; Menasha Wooden Ware Co. v. Lawson, 70 Wis. 600; In re Hemphill, 6 Land Dec. De] Int. 555, per Vilas, Sec. Int.; Jefferis v. East Omaha Land Co. 134 U. S. 196, affirming East Omaha Land Co. v. Jeffries, 40 Fed. Rep. 386; Whitney v. Detroit L. Co. 78 Wis. 249.

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 *491be surveyed, and require the surveyor to note in bis field book the true situations of “ all watercourses over which the line he runs may pass ” (R. S. of U. S. sec. 2395, subd. 7), and also require him to ascertain the boundaries and contents of sections, half sections, and quarter sections; “ and the boundary lines which have not been actually run and marked shall be ascertained, by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the 'case may be, to the watereowse, Indian boundary line, or other external boundary of such fractional township.” R. S. of TJ. S. sec. 2396, subd. 2. Rut the Interior department is nowhere authorized to dispose of any lake, or any section or fraction of any lake, by patent or otherwise, notwithstanding nearly 300 sections of the federal statutes are devoted to the public lands. R. S. of II. S. secs. 2207-2490.

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 *492bounded on streams and other waters, made without reservation or restriction, are to be construed, as to their effect, according to the law of the state in which the lands lie.”’ Hardin v. Jordan, 140 U. S. 371. To the same effect, Illinois Cent. R. Co. v. Illinois, 146 U. S. 387. The same court has held that “ whatever incidents or rights attach to the ownership of property conveyed by the United States, bordering on navigable streams, will -be determined by the states in which it is situated, subject to the limitation that their rules do not impair the efficacy of the grant, or the use and enjoyment of the property by the grantee.” Packer v. Bird, 137 U. S. 661. In this state it has been repeatedly held that the riparian proprietor upon navigable lakes and ponds takes title of the land only to the water’s edge. Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Boorman v. Sunnuchs, 42 Wis. 233; Diedrich v. N. W. U. R. Co. 42 Wis. 248; Priewe v. Wis. State L. & I. Co. 93 Wis. 546; Ne-pee-nauk Club v. Wilson, 96 Wis. 290.

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 *493purports to cover, portions of the lake, must be regarded, as un-áuthorized, contrary to the statute, and hence void, although, in so far as it covers dry land, the same may be valid; and this applies to the condition of the waters on the premises in question at the time of the commencement of this action, forty-seven years after the construction of the Far well dam. That dam was a permanent structure, designed to be such, and has so remained for nearly half a century. There is no -claim that it was an unlawful structure. Although an artificial structure, which considerably increased the depth, the extent, and breadth of the waters on the premises in question, yet the public had the right to navigate such waters after they were so increased in volume, the same as though they had always remained in that condition. Whisler v. Wilkinson, 22 Wis. 572; Volk v. Eldred, 23 Wis. 410; Weatherby v. Meiklejohn, 56 Wis. 73; Smith v. Youmans, 96 Wis. 103, and cases cited by Mr. Justice Piunby on page 110. Certainly, persons navigating the lake cannot be required or expected to carry with them a chart and compass and measuring lines, to determine whether they are at all times within what were the limits of the lake prior to the construction of the dam.

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 *494portion of the Catfish in question is a navigable stream. Willow River Club v. Wade, 100 Wis. 86. What has been said about the raising of the waters of the portions of the lake in question applies equally to the raising of the water and broadening and deepening of the channel of Catfish creek. This opinion is not to be construed as giving any right to trespass upon anjr lands of the plaintiff or other private owner.

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.