Finn v. Wis. River Land Co.

• Citation: 72 Wis. 546,40 N.W. 209
• Parties: FINN ET AL. v. WISCONSIN RIVER LAND CO.
• Decision Date: 08 November 1888
• Court: United States State Supreme Court of Wisconsin

72 Wis. 546

40 N.W. 209

FINN ET AL.

v.WISCONSIN RIVER LAND CO.

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Lincoln county; CHARLES M. WEBB, Judge.

This is an action in equity, brought to remove a cloud upon the plaintiffs' title to certain land in Lincoln county, to-wit, the E. 1/2 of the S. W. 1/4, and the W. 1/2 of the S. E. 1/4, of section 36, town 31, range 7 E. The land was purchased from, and patented by, the government, in 1860, to one Daniel Finn, the father of the plaintiffs, who died intestate in 1880 seized thereof. The plaintiffs are his only heirs at law, and claim to own the land as tenants in common, by descent from their father, and to have the actual possession thereof. The alleged cloud upon the title consists of three tax deeds, alleged to be invalid, executed by the proper officer to one John Comstock, and a conveyance of the land by Comstock to the defendant corporation, the Wisconsin River Land Company. One of these tax deeds is based upon the sale of 1879, for the delinquent taxes of 1878, and is dated, and was recorded, May 31, 1882. It conveys the W. 1/2 of the S. E. 1/4. Another of such deeds is based on the sale of 1881, for the delinquent taxes of 1880, and is dated, and was recorded, May 21, 1884. This deed conveys both 80-acre tracts. The remaining tax deed is based on the sale of 1882, for the delinquent taxes of 1881, and is dated, and was recorded, June 13, 1885. It conveys the E. 1/2 of the S. W. 1/4. This action was commenced September 12, 1887. The complaint alleges that the plaintiffs are the owners of the land in question as tenants in common; that they are jointly in the actual possession thereof, and have been ever since May 31, 1882; and that, for reasons therein stated, each of said tax deeds is invalid. The usual relief in actions quia timet is demanded. The answer of the defendant denies most of the material allegations of the complaint. It also alleges that the land was vacant and unoccupied at the time the tax deeds were recorded, and so remained for more than three years thereafter, and claims the benefit of the statute of limitations in that behalf.

The court found as facts that the plaintiffs were, at the commencement of the action, the absolute owners in fee-simple, and in the actual possession, of the land described in the complaint. The particulars of such possession, and the continuance thereof, as found by the court, are hereinafter stated. The court also found that the two oldest tax deeds were barred by the limitations of the three years prescribed in section 1187, Rev. St., as amended by chapter 309, Laws 1880, § 1; and that the tax deed of 1885 is void for omissions and irregularities in the tax proceedings, not going to the validity of the assessment, nor affecting the ground-work of the tax. The conclusion of law, deduced by the court from the foregoing facts, is, in substance, that the plaintiffs are entitled to the relief demanded in the complaint, upon payment into court for the defendant of the amount for which the land was sold in 1882 for the delinquent taxes of the preceding year, and the statutory interest thereon, prescribed by chapter 309, Laws 1880, § 4. The plaintiffs paid the amount into court as required, and judgment for the plaintiffs was thereupon entered, for the relief demanded in the complaint, pursuant to such conclusion of law.

The finding of the court on the subject of possession is as follows: “That long prior to May 31, 1882, and ever since that time, the plaintiffs have been in the actual possession of each of said 40-acre tracts of land; that the plaintiffs have every year been upon all of said lands a number of times, to see whether any trespasses were being committed thereon, looking over the timber, and running out lines upon which to build roads for the purpose of getting out some of the timber and fire-wood; that said lands have thereon a large quantity of pine, hemlock, elm, bass-wood, maple, birch, etc.; that, during a portion of the winter of 1882-83, some of the plaintiffs, with the consent of all, went upon said west half of the south-east quarter, and the south-east quarter of the south-west quarter, and cut roads through the same, for the purpose of getting out fence-rails and fire-wood, for use on their farms, and cut and removed a quantity of fence-rails and fire-wood from said lands; that during each of the winters of 1883-84, 1884-85, and 1885-86 some of the plaintiffs, with the knowledge and consent of all, occupied said lands a large portion of each winter, clearing out old roads, and building new ones on each of said forties, and in cutting and removing therefrom considerable timber each winter, some of which was for use, and was used in building a log barn for one of the plaintiffs, some was cut into saw-logs, and hauled to mill, and manufactured into lumber, and used in building and repairing buildings, on the farms of plaintiffs, some was cut and used for joists, sleepers, shakes, rafters, and some hewn to square timber for sills, and in each of said winters they took off fire-wood from said lands in quantities nearly sufficient for the use of one of the plaintiffs on his farm; that in cutting and removing said timber said plaintiffs used roads constructed by them, running to and over all of said tracts, and in taking said timber, and in building said roads, plaintiffs went upon said lands as the owners thereof, and cut and removed said timber as aforesaid in such quantities as they desired for use; that most of said timber so cut was growing hemlock and hard-wood and dry pine,--but few green pine trees being cut,--and that plaintiffs were endeavoring to hold or preserve said pine for future use; that the occupancy of the plaintiffs during said winters was not accidental, but was open and notorious, and continuous, in the usual manner that lands are occupied for such purposes; that in the winter of 1886-87 the plaintiffs occupied said lands by taking off one piece of long square timber from the N. W. 1/4 of the S. E. 1/4,...