Chi., St. P., M. & O. Ry. Co. v. Washburn Land Co.
Decision Date | 13 February 1917 |
Citation | 161 N.W. 358,165 Wis. 125 |
Court | Wisconsin Supreme Court |
Parties | CHICAGO, ST. P., M. & O. RY. CO. v. WASHBURN LAND CO. ET AL. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bayfield County; G. N. Risjord, Judge.
Suit by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against the Washburn Land Company and another to cancel a quitclaim deed on the gound of mistake. Judgment for plaintiff as against the Washburn Land Company for part of the land and for the other defendant as against plaintiff for the balance of the land, and both parties appeal. Affirmed on both appeals.
This action was brought to cancel and set aside a quitclaim deed of the northeast quarter of the southwest quarter and the south half of the northwest quarter of the southwest quarter of section 9, town 47 north, of range 5 west, in Bayfield county, Wis., executed by the plaintiff to the defendant Washburn Land Company, and the record thereof, and also to cancel a warranty deed of the northeast quarter of the southwest quarter to the defendant Jonas Bystrom and the record thereof, on the ground that the quitclaim deed from plaintiff to the Washburn Land Company was made by mistake, and that the conveyance by the Washburn Land Company to Bystrom was made under such circumstances that Bystrom was chargeable with notice of plaintiff's claim to the land and was not an innocent purchaser for value. The answer of defendant Washburn Land Company put in issue the allegations as to the mistake in the execution of the deed to it, and also set forth the conveyance to defendant Bystrom, but set up no counterclaim for the purpose of quieting its title to the land. The defendant Bystrom set up a tax title in one D. M. Maxcy, conveyance of the land by him to the defendant Washburn Land Company, and purchase by defendant Bystrom and conveyance to him by the Washburn Land Company of the 40 acres claimed to be owned by defendant Bystrom. The plaintiff replied alleging that the tax deed was void for several reasons. It was stipulated at the close of the trial that the court should determine, subject to the right of appeal, the title to the 20 acres held by the Washburn Land Company as well as the 40-acre tract held by defendant Bystrom. The court below made findings of fact and conclusions of law and ordered judgment thereon that the defendant Bystrom was an innocent purchaser of the 40 acres, and quieted title to the same in him, but set aside the title to the south half of the northwest quarter of the southwest quarter of section 9 claimed by the defendant Washburn Land Company. Judgment was entered accordingly, from which both parties appealed.Luse, Powell & Luse, of Superior (J. B. Sheean, of St. Paul, Minn., of counsel), for Chicago, St. P., M. & O. Ry. Co.
A. W. MacLeod, of Washburn, for Washburn Land Co.
Sanborn, Lamoreux & Pray, of Ashland (Horace B. Walmsley, of Milwaukee, of counsel), for Jonas Bystrom.
KERWIN. J. (after stating the facts as above).
It is established by the findings that D. M. Maxcy obtained a tax deed of the land in question on May 18, 1903, on sale of 1900 for the taxes of 1899, which deed was recorded June 26, 1905; that on or about June 17, 1905, Maxcy conveyed the land to defendant Washburn Land Company; that in December, 1907, the land company commencedan action against the plaintiff to quiet title to the northeast quarter of the southwest quarter and the undivided half of the northwest quarter of the southwest quarter of section 9--47--5, under the tax deed and title above mentioned, the complaint being in the usual form alleging that the land was vacant and unoccupied and no reference was made therein to the plaintiff's railroad being upon the tracts; that the summons and complaint were transmitted to the legal department of the plaintiff and by it referred to Mr. Bell, the land commissioner of plaintiff, with the inquiry as to whether the company had any interest in the land or defense to the action; that said land commissioner returned the summons and complaint and stated that the company had no interest in said land; that relying upon and believing such information, and not knowing that plaintiff's railroad ran over said land, the plaintiff executed the quitclaim deed and release of any interest it had in said land to the Washburn Land Company, the release and disclaimer being signed by the attorney for the company; that at the time of making said deed, and for many years prior thereto and up to the time of the trial of the action, said Bell was land commissioner of plaintiff and in charge of its land grant lands received from the state and the United States, but had not charge of lands owned by the company and used in the operation of its railroad and used for railroad purposes; that the company had a right of way commissioner who had charge of such lands; that the legal department did not refer the matter to the right of way commissioner, assuming that the land in question would have been in charge of the land commissioner if the company had any interest in it; that said deed and disclaimer were made by plaintiff under a mistake of the facts as to its interest in said land, such mistake was not shared in, however, by the defendants, but the defendant land company was mistaken as to occupancy; that the plaintiff did not become informed of the fact that it owned the land at the time the quitclaim deed was given and that its railroad ran across it, and of the use it had made of it and was making of it until about December, 1914; that the lands in question have been ever since 1899 assessed to the plaintiff and the tax paid by it, the assessment, however, excepting the right of way, usually 3 or 4 acres; that the defendant Bystrom in the fall of 1914 went upon the land and examined it with a view of purchasing for gravel purposes, and, supposing that the railroad company owned it, wrote to the land commissioner offering to purchase the northeast quarter of the southwest quarter, and received reply from the land commissioner, dated November 23, 1914, that the plaintiff did not own the land and had no interest in it; defendant Bystrom thereupon, relying upon said information, after examining the records of ownership in the register of deeds' office, purchased the 40 by warranty deed from the defendant land company, not knowing the circumstances under which the quitclaim deed was executed by the plaintiff to said land company, and paid therefor $400; that the said deed to Bystrom was executed December 21, 1914, and recorded in March, 1915; this deed made no exception of the railroad right of way and no reference thereto; that a mutual mistake was made in the deed from the land company to defendant Bystrom in not excepting plaintiff's right of way in said conveyance, and it was not intended by either of defendants that the main track, side track, or switches located upon the premises at the date of said deed were to be conveyed thereby; and that, so far as said deed covers said railway tracks, right of way, side tracks, or switches of the plaintiff, the same was a mutual mistake between the parties defendant.
The court further found that February 14, 1884, the plaintiff became the owner of all of section 9, township 47 north, range 5 west, and sold the same, except a strip 100 feet wide across said section upon which its railroad had been built; that in 1899 plaintiff dug test pits and found that the land in question contained sand and gravel suitable for repairs of its railroad, and in 1899 plaintiff bought the land in question; that the railroad track of the plaintiff ran easterly and westerly across said land; that, for the purpose of taking out sand and gravel from the land in question adjacent to the track from time to time as needed for repairs of its track, plaintiff in the year 1899 laid a track extending southeasterly from the main track in a semicircular form for a distance of about 500 feet on the east 40, taking up some material that fall, and in the spring of 1900 took about 1,500 carloads of sand and gravel for the repair of its railroad; that in 1907 plaintiff constructed a...
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