Wis. Cent. R. Co. v. Price Co.

• Decision Date: 01 December 1885
• Citation: 26 N.W. 93,64 Wis. 579
• Parties: WISCONSIN CENT. R. CO. v. PRICE CO. AND OTHERS.
• Court: Wisconsin Supreme Court

64 Wis. 579

26 N.W. 93

WISCONSIN CENT. R. CO.

v.PRICE CO. AND OTHERS.¹

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court Price county.

This action was commenced April 10, 1884, to set aside the taxes levied and assessed on the lands described in the complaint in the year 1883, and to restrain the defendants from selling the same for the non-payment of said taxes, on the ground that none of said lands were liable to taxation in that year under the act of congress of May 5, 1864, and the laws of this state. The answer, in effect, alleges that prior to January 1, 1880, the plaintiff had fully completed its railway, and fully earned the lands in question, and thereby became the equitable owner thereof, and entitled to patents therefor. The cause was tried, and February 18, 1885, the court found, in effect, as matters of fact (1) that the lands described were all wild, unoccupied, and unimproved, and situated in the town of Worcester, in the defendant county, and were a portion of the lands granted to the state by the third section of the act of congress of May 5, 1864, for the purpose of constructing what is now the plaintiff's railway; (2) that 11 forties of the lands described were situated within the 10-mile limits of said grant, and all the rest within the indemnity limits, and all in odd-numbered sections; (3) that all of said lands were assessed in said town in 1883, and put into the tax-roll, and the amount of tax carried out against each respective piece as stated in the complaint, but were not assessed to the plaintiff by name, nor to any one else, nor to “unknown,” and none of the real estate included in the assessment roll for that year was assessed to the owners thereof; that a warrant was attached to said tax-roll, and the roll, with said warrant attached, placed in the hands of the town treasurer for collection; that the taxes were unpaid thereon, and the town treasurer returned the same to the county treasurer as delinquent; (4) that February 25, 1884, the plaintiff received a patent from the state of all said lands, and thereby acquired the absolute title in fee to the same; that until then the plaintiff got no title to the lands, and had no right to sell or convey the same; that until they were segregated and identified, and the grant applied thereto, the grant was “a float;” (5) that the plaintiff's right to the lands was in dispute between the state and the United States; that said lands and others were withheld from the state and the plaintiff by the secretary of the interior, and consequently the issuing of patents therefor by the United states delayed; that the plaintiff did not in any manner delay the issuing of patents therefor, but, on the contrary, was diligent and persistent in its efforts to procure said patents from time to time; that the delay in their issue was caused entirely by the government of the United States and the general land-office, against the protest of both the plaintiff and the state, and in spite of continued and unintermitted efforts made by both the plaintiff and state to obtain their issue by the interior department; (6) that the lands described had, at the time the taxes were levied and assessed thereon in 1883, been selected as lands to which said land grant applied, but said selections had not been approved by the secretary of the interior, and had not been certified to the state, and had not in any manner been identified as the lands upon which the plaintiff would eventually receive patents, but, on the contrary, the secretary of the interior had refused to recognize the right of the state to the lands, or to approve the selections so made; (7) that all the material allegations of the complaint were true. As conclusions of law the court found, in effect, (1) that it was not the intent and meaning of the act of congress that said lands should be subject to taxation until they had been earned by the plaintiff and patented by the United States; that while these lands had been in truth earned by the plaintiff before the lands were assessed for taxation, yet the plaintiff's right to the same and patents therefor had been denied by the secretary of the interior; that the plaintiff could not exercise control over them until it should be determined whether it was entitled to receive patents for them as part of the lands granted; (2) that said lands were “a float” as long as the plaintiff's right thereto was not admitted and recognized by the secretary of the interior, but denied and disputed by him, and patents therefor withheld by him against the will and request of the plaintiff and hence during such time the lands were not subject to taxation by the state; (3) that said lands were not subject to taxation in 1883, and that the taxes levied and assessed thereon for that year were and are illegal and void, and should be set aside for the reason that said lands were exempt from taxation during that year; (4) that said tax was a cloud upon the plaintiff's title to said lands, and it was therefore entitled to prevail and to the relief prayed for in the complaint. Upon such findings judgment in favor of the plaintiff, perpetually restraining the defendants from collecting said taxes, was entered, and from that judgment the defendants bring this appeal.D. S. Wegg and T. L. Kenan, for respondent, Wisconsin Cent. R. Co.

Willis Hand, M. Barry, and A. R. Mead, for appellants, Price Co. and others.

CASSODAY, J.

By the act of congress of May 5, 1864, certain lands were granted to the state to aid in the building of three separate lines of railway. 13 St. at Large, 66, c. 80. The third section granted lands to the state in aid of what is now the plaintiff's line of road. The language of the section is in effect “that there be and is hereby granted to the state of Wisconsin, for the purpose of aiding in the construction” of said line of road, “every alternate section of public land designated by odd numbers, for ten sections in width on each side of said road; * * * but in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved, or otherwise disposed of any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, that it shall be lawful for any agent or agents of said state appointed by the governor thereof to select, subject to the approval of the secretary of the interior, from the lands of the United States, nearest to the tier of sections above specified, as much public land in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the right of pre-emption or homestead has attached as aforesaid, which lands (thus selected in lieu, etc.) shall be held by said state or by the company to which she may transfer the same for the use and purposes aforesaid.” Section 7 provided, in effect, “that whenever the companies to which this grant is made, or to which the same may be transferred, shall have completed twenty consecutive miles of any portion of said railroads,” etc., * * * patents shall issue, conveying “the right and title to said lands to the said company entitled thereto on each side of the road so far as the same is completed, and coterminous with said completed section, not exceeding the amount aforesaid, and patents shall in like manner issue as each twenty miles of said road is completed: provided, however, that no patents shall issue for any of said lands unless there shall be presented to the secretary of the interior a statement, verified on oath or affirmation by the president of said company, and certified by the governor, * * * that such twenty miles have been completed in the manner required by this act.” Section 8 provided, in effect, “that the said lands * * * granted shall, when patented as provided in section seven of this act, be subject to the disposal of the companies respectively entitled thereto for the purposes aforesaid, and no other.” Section 9 provided, in effect, “that if said road * * * is not completed within ten years from the time of the passage of this act, as provided therein, no further patents shall be issued to said company for said lands, and no further sale shall be made, and the lands unsold shall revert to the United States.” That act was explained and enlarged by a resolution of congress approved June 21, 1866. 14 U. S. St. at Large, 360. By an act of congress approved April 9, 1874, the time for the completion of the road, without reversion, was extended to December 31, 1876. 18 St. at Large, 28, c. 82.

It is undisputed that all the lands covered by section 3 of the act of congress of May 5, 1864, were, by several acts of the legislature of this state, granted to the predecessors of the plaintiff and finally to the plaintiff, substantially upon the same terms and conditions named in the acts of congress. Among the conditions so imposed by the state was one to the effect that the title to the lands should not vest in the company sooner or faster than the lands might be sold, as provided and declared in the aforesaid act of congress; but declared, in effect, that the company should be capable, in law, of taking and holding any land so granted which should be conveyed to it by such grant, or deed, or by the operation of law, and might also mortgage, or pledge, or otherwise dispose of all their right, title, interest, or claim therein of which it might be seized at the time of the execution of such mortgage, or which it might acquire subsequently thereto. Sections 8, 11, c. 314, P. & L. Laws 1866; sections 9, 12, c. 362, P. & L. Laws 1866, as amended by chapter 6, Laws 1875. By a subsequent act it was declared, in effect, that whenever any railroadcompany in this state, holding grants of land to aid in its construction, had or should finish its said railroad, or any section...