Musser-Sauntry Land, Logging & Manuf's Co. v. Tozer

• Decision Date: 06 February 1894
• Docket Number: 8514,8515
• Citation: Musser-Sauntry Land, Logging & Manuf's Co. v. Tozer, 57 N.W. 1072, 56 Minn. 443 (Minn. 1894)
• Parties: Musser-Sauntry Land, Logging & Manuf's Co. v. David Tozer
• Court: Minnesota Supreme Court

57 N.W. 1072

56 Minn. 443

Musser-Sauntry Land, Logging & Manuf's Co. v. David Tozer

Nos. 8514, 8515

Supreme Court of Minnesota

February 6, 1894

Argued January 16, 1894.

Application for reargument denied April 6, 1894.

Appeal by defendant, David Tozer, from an order of the District Court of Washington County, W. C. Williston, J., made September 5, 1893, denying his motion for a new trial.

Appeal also by the plaintiff, Musser-Sauntry Land, Logging and Manufacturing Company, a corporation, from an order of said court made in the same case on the same day denying its motion for a new trial.

On May 20, 1889, plaintiff owned two hundred and eighty acres of unoccupied land in section ten (10) T. 42, R. 15, in Burnett County, Wisconsin. On that day this land was conveyed by the county clerk of that county in seven different tracts of forty acres each to E. F. Drake for $ 102.38 unpaid taxes thereon. The deed was duly recorded the same day. On September 10, 1890, Drake sold and conveyed to T. H Thompson, the pine timber on the land with the privilege of cutting and removing it within two years thereafter. Andrew Clendenning under agreement with Thompson entered upon the land in December, 1890, and cut thereon 421,539 feet board measure of white pine sawlogs. On January 6, 1891, the plaintiff notified him that it owned the land and timber and forbid his cutting any more of the timber or removing any already cut. He removed, however, the logs he had cut, took them down the St. Croix river to Stillwater and sold them to the defendant, David Tozer. Plaintiff notified Tozer that it owned the logs and demanded possession of them but he refused, and thereafter sold them and converted the proceeds to his own use. While standing on the land the timber was worth $ 1.65 per thousand feet, but when cut and driven to Stillwater the logs were worth there $ 8 per thousand feet. On April 19, 1892, the plaintiff sent its servants upon the land who camped and stayed there as described in the opinion of the court.

This action was commenced October 14, 1892, to recover of defendant $ 3,372.31, the value of the logs at Stillwater with interest thereon from the date of the conversion. A jury was waived. Findings were made and judgment ordered for the plaintiff for the value while standing timber on the land, $ 695.54 and interest. The defendant moved for a new trial on the ground that under the Wisconsin Rev. Stat. §§ 1187, 1188, introduced in evidence, the plaintiff had lost title to the land. The plaintiff moved at the same time for a new trial also, on the ground that its damages should have been assessed at the value of the logs at Stillwater. Both motions were denied and both parties appealed.

For these reasons the order denying defendant's motion for a new trial is reversed, and the appeal of plaintiff is dismissed.

Clapp & Macartney, for plaintiff.

The statute of Wisconsin makes the tax deed prima facie evidence of title, but up to the time that the statute of limitations has run, a deed will be set aside if any irregularity is shown. After the statute has run the situation is different. Bronson v. St. Croix Lumber Co., 44 Minn. 348; Hilgers v. Quinney, 51 Wis. 62; Potts v Cooley, 51 Wis. 353; Ramsay v. Hommel, 68 Wis. 12; Pier v. Prouty, 67 Wis. 218; Urquhart v. Wescott, 65 Wis. 135; Morris v. Carmichael, 68 Wis. 133; Wisconsin Cent. R. Co. v. Wisconsin River L. Co., 71 Wis. 94; Morrow v. Lander, 77 Wis. 77; Dupen v. Wetherby, 79 Wis. 203.

The statute operates in favor of the possessor of the land to bar the title of whichever party was, during the three years next after the recording of the tax deed, out of actual possession. Falkner v. Dorman, 7 Wis. 388; Knox v. Cleveland, 13 Wis. 245; Parish v. Eager, 15 Wis. 532; Swain v. Comstock, 18 Wis. 463; Jones v. Collins, 16 Wis. 594.

As to what constitutes a sufficient possession on the part of the original owner to bar the tax deed, we call the court's attention to Haseltine v. Mosher, 51 Wis. 443; Smith v. Sherry, 54 Wis. 114; Stephenson v. Wilson, 50 Wis. 95; Finn v. Wisconsin River L. Co., 72 Wis. 456.

The possession taken by plaintiff's servants constitutes a sufficient possession to prevent the running of the statute of limitations in favor of the tax deed, and to set the statute running in favor of the former owner, for the express reason that the title which is to be defeated by such possession is a tax title. It does not require any such possession to enable the former owner to plead the statute as a bar in his favor against the tax title, as it would to enable a claimant setting up possession as a bar to the patent title from the United States, to recover.

Baker & Helms and F. B. Dorothy, for defendant.

The taxes on these lands for the year 1885, were returned delinquent and in May, 1886, the lands were sold for the taxes and charges. Certificates were issued and plaintiff allowed the three years to expire without redeeming. On May 20, 1889, a tax deed was issued to the holder of the tax certificates and duly recorded. For three years subsequent to the recording of the deed plaintiff had the right to set aside the deed for any irregularities or defects. But it brought no suit to do so. A year and a half after recording the deed, the parties holding under it, who had bought the timber, cut it into sawlogs. After the timber was cut, plaintiff served a notice upon them that it owned the land and forbid their cutting the timber or removing that already cut.

Wis. Rev. Stat. §§ 1190, 4212, are as follows:

§ 1190. What shall constitute a possession of lands within the meaning of the preceding sections and the extent of such possessions, shall be governed by the rules prescribed for determining an adverse possession by a person claiming title founded upon a written instrument.

§ 4212. For the purpose of constituting an adverse possession by any person claiming a title founded upon some written instrument or some judgment, land shall be deemed to have been possessed and occupied in the following cases: 1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial enclosure. 3. Where, although not enclosed, it has been used for the supply of fuel or of fencing timber, for the purpose of husbandry, or for the ordinary use of the occupant.

The design of this statute was to supply certain conditions of actual adverse possession, not to exclude others. They are enumerated because they are conditions all of which would probably fall short of constituting actual adverse possession at common law. Whatever would constitute actual adverse possession under paper title outside of the statute, still constitutes it notwithstanding the statutory definition of other conditions of such possession. Wilson v. Henry, 40 Wis. 594.

The camping of plaintiff's servants on the land in April, 1892, was not an adverse possession within the meaning of these statutes or under the common law. Davis v. Spring Valley Water Works, 57 Cal. 543; Pepper v. O'Dowd, 39 Wis. 538; Furlong v. Garrett, 44 Wis. 111; Unger v. Mooney, 63 Cal. 586; Leeper v. Baker, 68 Mo. 400; Washburn v. Cutter, 17 Minn. 361; Denham v. Holeman, 26 Ga. 182.

The late case of St. Croix Land and Lumber Co. v. Ritchie, 78 Wis. 492, is directly in point and settles the law in that state upon the subject.

OPINION

Canty, J.

This is an action brought by the plaintiff against the defendant for the conversion of logs cut on land claimed to be owned by plaintiff, and which were owned by it unless its title had been divested by reason of a tax deed under which defendant claims.

The effect of this tax deed is the principal question in the case. Since and before the date of the execution of such deed there has been in force in that state a statute of limitation in favor of such tax deeds, which reads as follows:

Wis R. S. "§ 1188. No action shall be maintained by the former owner or any person claiming under him, to recover the possession of any land or interest therein which shall have been conveyed by deed for the non-payment of taxes or to avoid such deed against any person claiming under such deed, unless such action shall be brought within three years next after the recording of...