31 Wis. 359 | Wis. | 1872
Lead Opinion
The following opinion was filed at the January term, 1872.
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.”
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.
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
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
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
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.
Rehearing
The respondent moved for a rehearing. .The argument of his counsel in support of that motion is not found upon the files
The following opinion was filed at the June term, 1872.
The arguments on the motion for a rehearing have not changed our views in respect to the questions decided in the former opinion, except upon one point., And that is, we think we were incorrect in holding that the land was subject to taxation after the passage of the act of congress of 1860, and before a survey thereof had been made and approved by the executive department of the government. In the decision
The counsel for the plaintiffs now insists that until a survey was made under the direction of the commissioner of the land office, which should be approved by the executive department of the government as contemplated by this act, the land confirmed to Pierre ■ Grignon was not separated from the lands owned by others, and that its boundaries could not be ascertained and known so as to render it liable to taxation. It is said that until this survey was made and approved, and the tract located by some ascertained limits, neither Grignon nor his heirs or assigns had any specific land capable of description and taxation under the laws of this gtate. It seems to us that this view is correct.
The act of congress undoubtedly contemplated that a survey of the land confirmed to Grignon should be made under the direction of the commissioner of the general land office. This was obviously for the purpose of fixing the locality of the tract confirmed to him and. his assigns ; and until the approved survey was made and a patent therefor issued, it was impossible
It is, however, objected by the counsel for the defendant, that if this view is correct, and the title legal and equitable remained in the United States until the passage of the act of 1860, then the plaintiffs acquired no interest in the land by the conveyances introduced in evidence on the trial. All that we deem it necessary to say in answer to this objection is, that those conveyances transfer whatever interest, claim and demand the heirs of Pierre Grrignon had in this claim, and the act of congress expressly declares that the patent issued shall be subject to such legal transfers or assignments as may have been made by Pierre Orignon, his heirs or legal representatives. Under this law it is plain the patent would enure to the benefit of the plaintiffs.
Again it is said there was no sufficient evidence that the pri-
The objection that the confirmation to Pierre Grignon was void for uncertainty, is clearly untenable. The act was passed with reference to the report made by the commissioners, and the plats and maps on file in the general land office, by means of which the tract was in fact surveyed and located.
By the Court.— The motion for a rehearing is denied.