Grunert v. Spalding

• Decision Date: 14 March 1899
• Citation: 78 N.W. 606,104 Wis. 193
• Parties: GRUNERT v. SPALDING ET AL.
• Court: Wisconsin Supreme Court

104 Wis. 193

78 N.W. 606

GRUNERT

v.SPALDING ET AL.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Oconto county; S. D. Hastings, Jr., Judge.

Action by Julius B. Grunert against Jesse Spalding and others. From a judgment for plaintiff, defendants appeal. Modified.

By an act of congress of March 3, 1863 (12 Stat. 797), there were granted to the states of Wisconsin and Michigan certain lands as aid for the construction of a military road from Ft. Wilkins, Copper Harbor, Keweenaw county, in the state of Michigan, to Ft. Howard, Green Bay, in the state of Wisconsin. That grant was accepted by the state of Wisconsin, by chapter 478, Laws 1864, by which act was created a commission authorized to survey and contract for the construction of such a road through Wisconsin, to be paid for only in the granted land. On August 4, 1864, those commissioners entered into a contract with James M. Winslow, of St. Paul, for the construction of the road in Wisconsin, in consideration of three sections of land to a mile of road. That contract did not exactly comply with the terms of the act of 1864. It was assigned by Winslow, with the consent of the commissioners, to the United States Military Road Company, a corporation, and by that corporation, on August 9, 1866, again with the consent of the commissioners, was assigned to Jackson Hadley; the commissioners extending the time for completing the construction to August 24, 1868. By Gen. Laws 1865, c. 331, the variation of the contract from the law of 1864 was authorized, and by P. & L. Laws 1867, c. 79, the terms of the contract, and its assignment and extension to Hadley, were ratified and confirmed. Hadley and his assignors prior to March, 1867, had constructed, and the commissioners accepted, 30 miles of said road, leaving about 110 miles for construction. Hadley died March 3, 1867, and, shortly after, the commissioners formally determined that the work of constructing said road was not diligently and properly prosecuted, and that the representatives of said Hadley had forfeited all rights which they might have by virtue of said contract, and proceeded, in pursuance with the act of 1864, to advertise anew for bids. One J. W. Babcock was the only bidder, and he offered to build the remainder of the road, exclusive of the 30 miles constructed by Hadley, at the same rate of three sections per mile, payable as each 10-mile division of the road was completed, which proposal was opened, accepted, and approved by the commissioners on May 30, 1867, and a contract made in pursuance thereof on July 20, 1867, providing, among other things, “that this contract, and every part thereof, and any interest or interests therein, shall not be assigned or assignable to any person or persons, firm or corporation, in any manner or for any purpose whatsoever, without the written consent of the said commissioners, or their successors in office, first had and obtained, giving the name of the assignee or assignees agreed upon; such assignee or assignees to give bond to the state of Wisconsin according to the aforesaid act of the legislature of Wisconsin.” Said contract also recited the forfeiture and cancellation of the Winslow-Hadley contract. Shortly prior to the making of the Babcock contract of July 20, 1867, and after the acceptance of his bid, to wit, July 12, 1867, a written agreement was entered into between George N. Fletcher, J. W. Babcock, and A. G. Crowell, the material part of which is as follows: “This agreement, made this above date by and between George N. Fletcher, of the one part, J. W. Babcock, of the second part, and A. G. Crowell, of Lock Haven, Pennsylvania, of the third part, whereby the above-named parties agree to purchase of the heirs of Jackson Hadley their interest in the unfinished part of the United States Military Wagon Road, commencing at Green Bay, Wisconsin, and running north to the state line, being some one hundred and ten miles, for which the parties agree to pay five thousand dollars, as per agreement with Otis B. Hopkins, representative of the said heirs and J. W. Babcock. The said Crowell agrees to pay one-fourth part the said five thousand dollars, and also the one-fourth part of the cost of building so much of the said road as the parties shall decide to build, and the said Fletcher is to pay three-fourths of the said five thousand dollars and the building of said road; and the said Babcock agrees to spend his time in overseeing and doing the work in building said road, for which said Babcock is to receive for his share one-fourth part of the whole amount of land received for said job; and the said Crowell is to receive one-fourth part of the balance of said lands, after taking out said Babcock share, and the said Fletcher is to receive three-fourths of the balance left. The said lands may be equally divided, each one receiving his share in acres, by making as many divisions as may be necessary, and each one bidding for the same, or they may be held in common and sold and the proceeds divided as the parties hereafter shall decide. * * * And it is further agreed, if, upon examination, that it will not be advisable to build more than thirty miles of said contract, or any other part of said contract, then the said Babcock is to be released from overseeing the same, but is to receive pro rata for the number of miles he may build, in proportion to the whole as hereinafter agreed upon; and the said J. W. Babcock hereby binds himself to build the whole one hundred and ten miles, and to get the same accepted by the commissioners, for the sum of thirty thousand dollars, to be paid him by the said Fletcher and Crowell, as above stipulated.” In pursuance of this contract an assignment was procured from the administratrix of Hadley, dated July 19, 1867, of all of the Winslow-Hadley contract, except the 30 miles of road already completed, and the lands due therefor. It also appears that on the 23d of July said administratrix also conveyed to Crowell all interest in the first 30 miles and the lands due therefor, subject to indebtedness to a subcontractor.

Babcock proceeded with the construction of the road under his contract with the commissioners of July 20, and by November 25, 1867, had completed 40 miles of said road, which was certified to the secretary of the interior by the governor, and place lands approved to the state of Wisconsin therefor May 10, 1868, and indemnity lands on April 5, 1869. The indemnity lands so approved include the lands involved in the first and second causes of action here. On April 1, 1868, Babcock assigned to one Charles M. Smith, of Chicago, an undivided one-fourth of all the lands earned by the construction of said 40 miles of road, in pursuance of which, on February 23, 1870, a patent for said undivided one-fourth was issued to him by the governor of Wisconsin. His interest, however, is not further involved in controversy in this action, the taxes thereon having been duly paid. On June 20, 1873, Babcock executed to A. G. Crowell an assignment of an undivided three-sixteenths of the same lands, requesting the governor of the state of Wisconsin to issue to said Crowell a patent therefor, and containing no intimation of any previous rights of Crowell therein. On July 7, 1873, said undivided three-sixteenths was patented by the state to Crowell, the patent reciting the act of congress of April 4, 1864, the previous contract with Winslow (assigned to Hadley), the completion of 30 miles by him, the cancellation of that contract, the assignment of the unperformed part of that contract to Babcock, Crowell & Fletcher, the making of the new contract with Babcock, and the construction of the 40 miles of road, and the assignment on June 20, 1873, of Babcock to Crowell. On May 29, 1868, Babcock executed an assignment to George N. Fletcher of an undivided nine-sixteenths of the lands due for building the 40 miles of road then already accepted, reciting the making of the contract of July 20th with the commissioners, and requesting the governor to deed said share to Fletcher. On March 4, 1871, a patent was made by the governor to Fletcher, containing substantially the same recitations as those mentioned in the Crowell patent, and also reciting that the assignment to Fletcher was made in pursuance of the contract between Babcock, Fletcher, and Crowell, of July 12, 1867, whereby Fletcher became and was a partner with said Babcock in building said road, and as such partner furnished a portion of the money to build said 40 miles of road, and was to receive as his share nine-sixteenths of the land earned in building the same. This patent runs to Fletcher, as follows: “Do give and grant unto the said George N. Fletcher, partner and assignee of said John W. Babcock as aforesaid,” etc.

Before the making of Babcock's bid, to wit, on April 9, 1867, by what is known as chapter 429 of the Private and Local Laws of that year, it was provided that all the lands located in the state of Wisconsin, granted by the act of congress of March 3, 1863, or which might thereafter be granted by congress, to aid in the construction of the military road, “are hereby exempt from taxation and from assessment of any kind, up to the 3d day of March, 1873, and during the time that the title to such lands shall remain in the state, or in the contractor to construct said military road, or his assigns: provided, that such lands, or any part thereof, shall not be exempt from taxation from and after the time the same shall be sold and conveyed by the contractor or his assigns to purchasers for actual settlement, or for the timber or minerals on the same, or for speculation; and provided further, that such exemptions shall not extend to any land which may now be or may hereafter be improved and held by the contractor or his assigns; and provided further, this act shall be so construed that such exemptions shall extend to any and all such lands as...