100 Minn. 16 | Minn. | 1907
The complaint herein alleged that the plaintiff was and is the owner of the Southeast quarter of the Northwest quarter, section 12, township 148, range 32, in the county of Beltrami; that between September 1, 1903, and May 1 following, the defendant wrongfully entered upon the land and cut and carried away the timber standing thereon, to the amount of one hundred fifty thousand feet of logs, of the value of
The evidence was sufficient to establish these facts:
On October 20, 1877, the land in question was patented to the state of Minnesota as swamp land. On March .3, 1881, the state, by chapter 415, p. 964, Sp. Laws 1881, granted to the Little Falls & Dakota Railroad Company, hereafter designated as the “Little Falls Company,” to aid it in the construction of its railroad, six sections of swamp land of the state for each mile thereof to be selected from the swamp lands lying nearest the railroad line in the counties through which it should run, with the right, in case of a deficiency in such lands, to select other swamp lands of the state to make up the full quantity granted. This grant was upon the express condition that the Little Falls Company should commence the work of construction of its main line within one year and complete the same within three years after the making of the grant, and, in case any part of such main line should remain uncompleted at the expiration of three years, all the lands granted appertaining to the then uncompleted portions of such line should become forfeited to and become revested in the state without further act or ceremony. The grant also provided that, as often as any continuous section of road thirty miles in length should be completed to the satisfaction of the governor of the state, he should convey to the company a quantity of the granted lands equal to six sections for each mile of completed road. The Little Falls Company accepted the terms of the grant and completed two sections of its road, of thirty miles each, in accordance with the terms of the grant, for which it received, prior to the year
On September 20, 1898, the land commissioner, pursuant to the provisions of Laws 1865, p. 15, c. 5, selected and set apart the land here in question, with other lands, for the benefit of the educational and charitable institutions of the state. On August 20, 1901, the land commissioner, in the manner provided by statute, at a public sale of lands so selected, offered the land in question for sale and it was then sold to M. D. Stoner for $5 per acre; he being .the highest bidder therefor. He then made the required advanced payment and received a receipt therefor .in the usual form, which recited the sale of the land to him, and on February 3, 1902, the usual certificate of sale of the land, dated August 20, 1901, was delivered to him. The delay in issuing the certificate was due to the failure of-the county auditor to promptly report the sale. Stoner assigned his certificate and' interest in the land to A. A. White on May 1, 1902, and on September 6, 1902, the certificate and assignment were duly recorded in the office of the register of deeds of the proper county. The land was conveyed by White to the plaintiff before the commencement of this .action and on January 17, 1903. Au
Prior to the passage of this act neither of the railroads had conveyed or contracted to convey the land in question, save that the Little Falls Company, on November 8, 1898, executed to Messrs, Milliken & McGuire a written contract whereby it purported to license and permit them to cut and remove the pine timber suitable for saw logs, and none other, from a number of tracts of land, including the one here in question. This permit was duly recorded, and expired by its own terms on May 1, 1900, but was thereafter extended to May 1, 1902. On November 16, 1901, the governor of the state, purporting to act pursuant to the compromise act of 1901, made a deed to the Northern Pacific Railway Company of certain tracts of land, including the one in question, which was included therein by mistake in certifying the list to him. This deed was duly recorded December 12, 1901. On December 7, ■1901, the Northern Pacific Company, by deed which was recorded December 26,1901, purported to convey the land for a valuable consideration to Dwight F. Brooks; who then had no actual knowledge of the sale thereof 'by the state to Stoner, and who by a timber deed, dated October 16, 1902, and recorded October 27, 1902, purported to convey to the defendant all of the ^timber, except hardwood and cedar, on the land, with the right to enter thereon and to cut and remove such timber. The defendant, after receiving its timber deed, entered upon the land before the commencement of this action and in the spring of 1904, and cut and carried therefrom timber of the value of at least $900.
■ 1. The first question to be determined is the title to the land from which the timber, which is the subject-matter of this action, was cut. The land was not within the place limits of the grant to the Little Falls Company; that is, within any of the counties into or through which' its line was constructed. Nor could it be claimed as indemnity land to make up any deficiency in the land earned by
It is the contention of the defendant that such selection was void, becaus'e the officer did no't select for any particular institution any specified lands. He in fact certified that he had selected and set apart the swamp land described in a list annexed to his certificate for the different state institutions pursuant to the act of 1865, but did not apportion in his certificate the land so selected between the several institutions for whose benefit they were selected. We are of the opinion that the failure to so apportion them in the certificate did not render the selection invalid. The vital thing to be done was the selection and setting apart of the lands for the state institutions, and so certifying-The apportionment of the lands so set apart between the several institutions was a matter of detail, and we hold that the land was legally selected and set apart for the. state institutions. The lands so selected were “irrevocably dedicated and set apart for the purposes for which the same were selected.” G. S. 1894, § 4030. The permit or licensé to. Milliken- & McGuire to cut and remove the pine timber suitable for
2. The defendant, however, claims that the plaintiff cannot in any event recover for the timber, because the title in fee to the land was in the State until the patent was issued, which was after the commencement of the action. The claim is without merit. The owner of a state certificate of sale of school or swamp lands is-entitled to possession of the land and its rents and profits, and, as against all the world except the state, he is to be treated as the owner of the land. He may maintain ejectment for its possession and trespass against a wrongdoer. When the patent for such land issues, it relates back to the date of the sale. Wilder v. Haughey, 21 Minn. 101; McKinney v. Bode, 32 Minn. 228, 20 N. W. 94; Haaven v. Hoaas, 60 Minn. 313, 316, 62 N. W. 110; Plastay v. Bonness, 84 Minn. 120, 86 N. W. 896; Gilbert v. McDonald, 94 Minn. 289, 102 N. W. 712; Nicholson v. Congdon, 95 Minn. 188, 103 N. W. 1034.
3. The last claim urged by the defendant to be considered is-to the effect that the sale of the land to Stoner at public sale was void because the land was chiefly valuable for the timber thereon, which could only be sold pursuant to G. S. 1894, § 3965, which provides that in such cases the land itself shall not be sold until the timber thereon has been appraised and sold. There is evidence in the recoKd tending to show that there was one hundred thousand feet of pine timber on the land at the time it was sold. The duty of determining the question of fact whether any particular tract of state land is chiefly valuable for the pine timber thereon, which fact determines the manner of its sale, is vested by law in the state land commissioner. G. S. 1894, § 4008. The correctness of his decision of the question cannot be reviewed in
It follows that the verdict in favor of the plaintiff was right, and the order for judgment for the defendant notwithstanding the verdict wrong
Order reversed, and cause remandéd, with direction to the district court to enter judgment ..upon the verdict for the plaintiff.