Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.

• Decision Date: 08 January 1908
• Court: Wisconsin Supreme Court
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. DOUGLAS COUNTY ET AL.

134 Wis. 197

114 N.W. 511

CHICAGO, ST. P., M. & O. RY. CO.

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against Douglas county and others. From an order overruling separate demurrers of defendants to the amended complaint, they appeal. Reversed and remanded.

Appeal from an order of the circuit court for Douglas county overruling the separate demurrers of Douglas county and its county clerk, Washburn county and its county clerk, and W. C. Crocker and others to the amended complaint. Among other references the following cases were cited upon the part of the appellants: Section 2, p. 11, c. 10, Laws 1882; Chapter 29, p. 19, Laws 1883; Strother v. Lucas, 12 Pet. (U. S.) 454, 9 L. Ed. 1137;Fletcher v. Peck, 6 Cranch (U. S.) 128, 3 L. Ed. 162;Deseret Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. 158, 35 L. Ed. 999;Schulenberg v. Harriman, 21 Wall. (U. S.) 44, 22 L. Ed. 551;Calhoun County v. Am. Em. Co., 93 U. S. 124, 23 L. Ed. 826;Rogers Locomotive Works v. Am. Em. Co., 164 U. S. 559, 17 Sup. Ct. 188, 41 L. Ed. 552;Hackett v. Carter, 38 Wis. 394. Among other references the following cases were cited upon the part of the respondent: Section 2620, St. 1898; West v. Walker, 77 Wis. 557, 46 N. W. 819;Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468;Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Ellis v. Northern Pac. Ry. Co., 77 Wis. 114, 45 N. W. 811;Grady v. Maloso, 92 Wis. 666, 66 N. W. 808;Draper v. Brown, 115 Wis. 361, 91 N. W. 1001;Douglas Co. v. Walbridge, 38 Wis. 179;Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629;Pratt v. Brown, 3 Wis. 603;State ex rel. Atty. Gen. v. Madison S. R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;Am. Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393;McCormick v. Hayes, 159 U. S. 332, 16 Sup. Ct. 37, 40 L. Ed. 171;State ex rel. Parsons v. Comm. School Lands, 9 Wis. 236;Sloan v. State, 51 Wis. 623, 8 N. W. 393; Bigelow on Estoppel (5th Ed.) 341; 11 Encyc. Law (2d Ed.) 396; 16 Cyc. 714; Bentley v. State, 73 Wis. 416, 41 N. W. 338;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565;Wallace v. City of Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;C., M. & St. P. Ry. Co. v. State, 53 Wis. 509, 10 N. W. 560;Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L. R. A. 39.W. R. Foley and L. H. Mead, for appellants.

Luse, Powell & Luse, for respondent.

TIMLIN, J. (after stating the facts as above).

The complaint in question sets forth that the plaintiff is a railroad corporation organized on May 25, 1880, by the consolidation as authorized by law of the North Wisconsin Railway Company and the Chicago, St. Paul & Minneapolis Railway Company, which last-named corporations had theretofore been organized and existing railway corporations--the North Wisconsin Railway Company since A. D. 1871; that each was organized under and pursuant to the laws of Wisconsin; the legal status of the three counties defendant; the official character of the three county clerks defendant; the corporate character of the private corporations defendant; that defendants Arnold, Moffet, McLean, Durant, Farman, Alvord, Guaranteed Investment Company, Lawler, Powers, Ryan, Riley, Crocker, Elliott, Bond, Harmon, Barbour, Franceshetti, J. L. Gates Land Company, James L. Gates, Kennedey, Smith, Boyd, and each of the three counties, hold certificates of tax sale against the lands hereinafter described, running back, in one case at least, to A. D. 1885, and continuing down until A. D. 1906; and that the defendants Mackey, Durant, Farman, Ryan, Washburn county, Riley Bond, Jr., Mary L. Bond, Barbour, Franceshetti, J. L. Gates Land Company, Smith, and North Wisconsin Lumber Company hold or claim under tax deeds issued upon tax sales of said land. It is averred that each, every, and all of these tax certificates and tax deeds are clouds upon “the right, title, and interest of this plaintiff in and to said lands, and all of them.” The groundwork of plaintiff's claim that the tax sales were void is so intimately bound up with the statement of plaintiff's title to these lands that it can be better stated in connection therewith.

The Congress of the United States, by an act approved June 3, 1856 (11 Stat. 20, c. 43), and another act approved May 5, 1864 (13 Stat. 66, c. 80), granted certain lands to the state of Wisconsin for the purpose of aiding in the building of a line of railroad from a point on the St. Croix river or lake between townships 25 and 31 to the west end of Lake Superior, and from some point on the line of said railroad a branch line to Bayfield, Wis., the grant to include every odd-numbered section along the lines of said railroad for 10 miles in width upon each side thereof. This grant was upon certain terms and conditions, fully set forth in said acts of Congress. Thereafter the state of Wisconsin duly accepted the said grants of land, and thereafter on March 11, 1874, in and by chapter 126, p. 186, of the Laws of Wisconsin for that year, the Legislature of the state of Wisconsin granted to the said North Wisconsin Railway Company the lands granted to the state for the purpose of aiding in the building of the railroad from St. Croix river to Bayfield; and later the Legislature of Wisconsin, by chapter 10, p. 11, Laws of 1882, granted to the plaintiff the lands along said line of railroad extending from a point near Spooner, Wis., to the west end of Lake Superior. Both of these grants inured to the benefit of the plaintiff; the latter by direct grant, and the former by reason of the plaintiff being the successor of the North Wisconsin Railway Company. These grants were made subject to certain conditions contained in chapter 126, p. 186, Laws of 1874, and chapter 10, p. 11, Laws of 1882, which required the building of said lines of railroad within a specified time, and further authorized and required the Governor of the state of Wisconsin from time to time to execute and deliver to the plaintiff patents for the lands aforesaid as fast as the railroad or railroads were completed in 20-mile sections, and when the entire line or lines of railroad were completed to issue and deliver patents for all the lands so granted. It is averred that the North Wisconsin Railway Company accepted all the terms and conditions of chapter 126, p. 186, Laws of 1874, and by itself and by the plaintiff as its successor completed the line of railroad through Bayfield on or before December 3, 1883. The plaintiff accepted all the conditions of chapter 10, p. 11, Laws of 1882, complied with the requirements of that law, and completed the building of the railroad through to the west end of Lake Superior before December 1, 1882. The grants of land were fully ratified and confirmed by chapter 29, p. 19, Laws of 1883, and chapter 262, p. 210, Laws of 1883. In and by the act of Congress of May 5, 1864 (13 Stat. 67, c. 80), the time fixed for the completion of the railroads under the grant of June 3, 1856, was extended until May 5, 1869, and the United States government at no time took any proceeding to resume or forfeit said grants, but at all times ratified, recognized, and fulfilled the same in all particulars except as hereinafter stated.

The North Wisconsin Railroad Company with reference to the line of railroad between St. Croix river and the village of Bayfield, and the plaintiff with reference to the line of road connecting with that line near the village of Spooner and extending to the west end of Lake Superior, each duly and definitely located its line of railroad and caused to be filed with the Secretary of the Interior of the United States government at Washington a map of such location. This location and map was duly approved by the Secretary of the Interior, and the location of each road duly accepted and approved by the state of Wisconsin, and the lines of railroad constructed, built, and completed along the line so selected and approved. From time to time during the construction of said lines of railroad, and each of them, proof was made and filed with the Governor of the state of Wisconsin of the completion of each 20-mile section thereof; also like proof, certified by the Governor of the state of Wisconsin, was presented to the Secretary of the Interior. These proofs were duly approved, accepted, and acted upon by the Governor of Wisconsin and the Secretary of the Interior from time to time. Pursuant thereunto a patent was issued by the Governor of the state of Wisconsin to the North Wisconsin Railway Company January 2, 1875, for part of said lands; another patent April 23, 1885, for another part of said lands; another patent February 14, 1884, for another portion of said lands. The complaint then avers that by reason of the acceptance by the state of Wisconsin of the lands granted by the United States under the acts of Congress before mentioned, and the granting of said lands to the North Wisconsin Railway Company and to the plaintiff, and the full acceptance on the part of the North Wisconsin Railway Company and the plaintiff of the terms and conditions of said grants and the performance of each and all of said conditions, including the construction of said lines of railroad and the completion thereof and making proper and regular proofs of such completion, and the acceptance thereof by the state of Wisconsin, and the certification and acceptance of the location and the building and construction of said lines of railroad, the plaintiff became and was and still is entitled to the land and all of the land in the alternate or odd-numbered sections adjacent to the lines of railroad so located and constructed within the 10-mile limit on either side thereof, excepting such lands as had, prior to the location of said lines of railroad, been sold, reserved, or otherwise...