12 Wis. 26 (Wis. 1860), Ross v. Board of Supervisors of Outagamie Co.

Citation12 Wis. 26
Opinion JudgeCOLE, J.
Party NameROSS v. THE BOARD OF SUPERVISORS OF OUTAGAMIE CO., impleaded with JOHNSTON and MORROW
AttorneyGeorge H. Myers, for appellant, James H. Howe and Norris, for respondent.
Judge PanelORSAMUS COLE, J. LUTHER S. DIXON, C. J., dissented.
CourtUnited States State Supreme Court of Wisconsin

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12 Wis. 26 (Wis. 1860)

ROSS

v.

THE BOARD OF SUPERVISORS OF OUTAGAMIE CO., impleaded with JOHNSTON and MORROW

Supreme Court of Wisconsin

January, 1860

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APPEAL from the Circuit Court of Outagamie County.

This was an action to set aside a tax certificate issued upon a sale of a quarter section of land in the county of Outagamie, for the non-payment of taxes assessed for the year 1855, and to restrain Johnston, the clerk of the board of supervisors, from executing a deed for said land to the defendant, Morrow, who was alleged to be the holder of the tax certificate. The principal question in the case was, whether the land referred to in the complaint was subject to assessment for town, county and State taxes, in the year 1855.

The facts in the case, as they appear from the finding of the circuit court, are substantially as follows: By an act of congress, approved August 8th, 1846, there was granted to the state of Wisconsin, on its admission into the Union, for the purpose of improving the navigation of the Fox and Wisconsin rivers, &c., "a quantity of land, equal to one-half of three sections in width, on each side of the said Fox river and the lakes through which it passes, &c., reserving the alternate sections to the United States, to be selected under the direction of the governor of said state, and such selection to be approved by the President of the United States. * * Provided, the said alternate sections reserved to the United States shall [should] not be sold at a less rate than two dollars and fifty cents the acre."

The state of Wisconsin accepted said grant, and the odd numbered sections within the territorial limits of the grant were selected under the direction of the governor, and the selection approved by the President. The United States had, however, sold part of the odd numbered sections so selected by the state, and congress, by an act approved March 2d, 1849, authorized the governor "to select the same quantity of other lands in lieu thereof; subject, however, to the approval of the President." In the month of June, 1849, the governor, in order to make up the deficiency in the quantity of land due to the state under said act of congress, selected, among other tracts, the quarter section of land referred to in the complaint, being part of one of the even numbered sections within the territorial limits of said grant, which selection the President of the United States did not confirm or approve.

By an act, approved July 6th, 1853, the legislature of Wisconsin incorporated a company, under the name of the "Fox and Wisconsin Improvement Company," to complete the improvement of said rivers, the fourth section of which act declares, that the lands granted by congress in aid of said improvement, and remaining unsold, should be, and were thereby, granted to the Fox and Wisconsin Improvement Company, upon certain terms and conditions; that all the lands so granted to said company should be exempt from taxation of every description, under any law of this state, until after the same should have been sold and conveyed, or contracted to be sold, or leased, or improved, by said company; Provided, said exemption should not continue longer than ten years; that any person who might have acquired the right of pre-emption under the laws of this state, or of the United States, to any portion of said lands, or had settled thereon in his own right, prior to the passage of that act, should be entitled to purchase the same of said company, at the minimum price of one dollar and twenty-five cents per acre; and that it should be the duty of the governor to take every necessary means to obtain, at as early a day as possible, the lands theretofore selected, and such as might thereafter be located by the company for the balance of the grant in aid of said improvement.

On the 25th of December, 1854, the plaintiff claimed the right to purchase the land referred to in the complaint, of the Fox and Wisconsin Improvement Company, at the price of one dollar and a quarter per acre, by virtue of a settlement made thereon by him, in his own right, prior to the 6th day of July, 1853, and on the said 25th of December, 1854, proved up his right to purchase said land at that price, before the proper officers of said company paid the purchase money, being two hundred dollars, and receiving from the proper officer of the company a receipt therefor, stating that it was "in full" for said land.

On the 1st of March, 1854, the legislature of the state of Wisconsin adopted a memorial to Congress, in which it was represented, that the even numbered sections of land on the Fox river, in the state of Wisconsin, and within three miles of said river, were reserved from sale in the year 1848, for the purpose of being donated to the state of Wisconsin, for the improvement of the Fox and Wisconsin rivers, and that with such expectation settlers went on to said lands, and made large and valuable improvements; that such improvements or lands were not subject to taxation for any purpose whatever; and that such settlers were very desirous of obtaining titles to said lands; wherefore the memorialists prayed, that said lands should be brought into market, either by the general government, or by donation to the state of Wisconsin, to be disposed of as the state should see fit; and that all of said settlers on said lands might have the right of pre-emption, who should reside on said lands, or have improvements on the same to the amount of fifty dollars, at the time of the passage of a law (by congress) on said subject.

On the 10th of October, 1856, the legislature adopted another memorial to congress, in which, after making the same statement contained in the former memorial, as to settlements and improvements upon said even numbered sections of land, and that such improvements or lands were not subject to taxation for any purpose whatever, it was further represented that, at the time such settlements were made, it was generally believed that the selection of such even sections would be confirmed to this State, and the settlers therefore entered upon them in undoubted good faith, as pre-emptors under the laws of this State; that the said settlers were subjected to great inconvenience, and in many cases to serious loss, in consequence of the want of title to their homes, and looked to congress as the only power to grant them relief; that the even sections had always been treated by the general government as a part of the grant made for the improvement of the Fox and Wisconsin rivers; and that, although the selection of such even sections had never been confirmed, the State had never yet been permitted to select other lands in lieu of them; wherefore the memorialists prayed congress to pass a law confirming the said selection of said even numbered sections, made by the State under the said grant, upon condition that said lands should be secured to the settlers thereon at a price not exceeding ten shillings per acre.

On the 9th of June, 1858, congress passed an act, entitled "an act for the relief of certain settlers on the public lands in the state of Wisconsin," by which it was enacted, "that so much of the even numbered sections of land, selected by the state of Wisconsin in the month of June, in the year eighteen hundred and forty-nine, to satisfy the quantity of land due said State under the act of congress of August 8, eighteen hundred and forty-six, granting land in aid of the improvement of the Fox and Wisconsin rivers, as have been sold or contracted to be sold by said state, or its assigns, under the laws thereof, are hereby confirmed to said state as parts of said grant, and the title of the purchasers declared to be valid, as though the said selections had been made in conformity with law; * * * Provided, that a schedule, duly certified by the governor, of the lands sold and contracted to be sold prior to the passage of this act, shall be filed in the general land office, within six months from the date of this act."

Within six months from the date of said act of congress, the schedule required by said proviso was filed in the general land office, containing the tract of land in the complaint described, and on the 26th of January, 1859, the plaintiff received a conveyance of said land from the Fox and Wisconsin Improvement Company, in compliance with the receipt or certificate of purchase thereof, above mentioned. It was also found by the circuit court, that the United States had never disposed of said tract, except by the several acts of congress above mentioned, and the proceedings had thereunder.

The court found, as conclusions of law, that the title to the land in the complaint mentioned, was in the United States at the time it was assessed for taxes in 1855; that the assessment and sale for taxes were illegal and void; that the issuing of the tax deed would create a cloud on the plaintiff's title; and that the plaintiff was entitled to a perpetual injunction against the execution of such tax deed. To these conclusions of law the defendants excepted, and judgment being rendered in accordance therewith, the board of supervisors of the county of Outagamie appealed.

Reversed and cause remanded.

George H. Myers, for appellant, contended, that the plaintiff had an estate in the land, which was taxable at the time the tax was levied. Our statutes declare all property, real and personal, not expressly exempt from taxation, to be taxable. If a citizen owns an estate in land, of which the fee is in the government, that estate is taxable. Thus, lands are taxable as soon as entered, and the title conveyed by the patent relates back to the time of the entry. 15 Ohio 367; 3 McLean 107; 7 Ohio 156. The article in...

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7 practice notes
  • St. Augustine School v. Taylor, 070221 WISC, 2021AP265-CQ
    • United States
    • July 2, 2021
    ...law as we find it, and not as the parties or others may have supposed it to be." Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., ¶103 The Wisconsin Supreme Court serves a law-development function. State ex rel. Wis. Senate v. Tho......
  • In re Judicial Disciplinary Proceedings Against Woldt, 071321 WISC, 2020AP1028-J
    • United States
    • July 13, 2021
    ...__ Wis.2d__, __ N.W.2d __ (Rebecca Grassl Bradley, J., dissenting) (quoting Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., dissenting)) ("We sit here to decide the law as we find it, and not as the parties or others may have supposed......
  • 40 Iowa 66 (Iowa. 1874), Litchfield v. County of Hamilton
    • United States
    • Iowa United States State Supreme Court of Iowa
    • Invalid date
    ...the title from that date. It is supported by the following cases: U. S. v. Arredondo, 6 Peters 691-713; Ross v. Supervisors, etc., 12 Wis. 26. The lands were assessed and taxed in 1859, under Chapter 152, Acts Seventh General Assembly. No such provision is found in that statute as Rev., § 7......
  • 3 Wis. 502 (Wis. 1854), Veeder v. Guppy
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • Invalid date
    ...Approved, Manny v. Smith, ib. Distinguished, Spaulding v. Martin, 11 Wis. 262. Distinguished, Ross v. Supervisors of Outagamie County, 12 Wis. 26....
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17 cases
  • 51 N.W. 386 (N.D. 1892), 6731, Northern Pacific R. Co. v. Barnes
    • United States
    • United States State Supreme Court of North Dakota
    • January 21, 1892
    ...for these lands, and if that be true then the lands are clearly taxable. Railroad Co. v. Prescott, 16 Wall. 608; Ross v. Outagamie Co., 12 Wis. 29; Railroad Co. v. Trempeleau Co., 35 Wis. 258; Railroad Co. v. Taylor Co., 52 Wis. 37; Iowa Homestead Co. v. Webster County, 21 Iowa 221; Railroa......
  • 136 P. 618 (Idaho 1913), Indian Cove Irr. Dist. v. Prideaux
    • United States
    • United States State Supreme Court of Idaho
    • November 11, 1913
    ...210; Bakersfield & Fresno Oil Co. v. Kern Co., 144 Cal. 152, 77 P. 892; Gwynne v. Niswanger, 15 Ohio 367; Ross v. Board of Supervisors, 12 Wis. 26; People v. Donnelly, 58 Cal. 144; Cobban v. Meagher, 42 Mont. 399, 113 P. 290; Topeka Com. Security Co. v. McPherson (Okl.), 52 P. The Calif......
  • 26 N.W. 93 (Wis. 1885), Wisconsin Central Railroad Co. v. Price County
    • United States
    • United States State Supreme Court of Wisconsin
    • December 1, 1885
    ...to taxation. Railway Co. v. McShane, 22 Wall. 444, 22 L.Ed. 747; Tucker v. Ferguson, 22 Wall. 527, 22 L.Ed. 805; Ross v. Outagamie Co. 12 Wis. 26; Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37 at 51, 8 N.W. 833; Witherspoon v. Duncan, 4 Wall. 210, 18 L.Ed. 339; Carroll v. Safford, 3 HOW 441, 1......
  • St. Augustine School v. Taylor, 070221 WISC, 2021AP265-CQ
    • United States
    • July 2, 2021
    ...law as we find it, and not as the parties or others may have supposed it to be." Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860) (Dixon, C.J., ¶103 The Wisconsin Supreme Court serves a law-development function. State ex rel. Wis. Senate v. Tho......
  • Request a trial to view additional results

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