Pettibone v. Cook County, Minnesota

• Decision Date: 16 June 1941
• Docket Number: No. 11847.,11847.
• Citation: 120 F.2d 850
• Parties: PETTIBONE et al. v. COOK COUNTY, MINNESOTA.
• Court: U.S. Court of Appeals — Eighth Circuit

120 F.2d 850 (1941)

PETTIBONE et al. v. COOK COUNTY, MINNESOTA.

No. 11847.

Circuit Court of Appeals, Eighth Circuit.

June 16, 1941.

John D. Jenswold, of Duluth, Minn., and Charles Wangensteen, of Chisholm, Minn. (Austin & Wangensteen, of Chisholm, Minn., and Jenswold & Dahle, of Duluth, Minn., on the brief), for appellants.

George B. Sjoselius, Sp. Asst. Atty. Gen., of Minnesota (J. A. A. Burnquist, Atty. Gen. of Minnesota, Chester S. Wilson, Deputy Atty. Gen. of Minnesota, and E. P. J. Chapman, Cook County Atty., of Grand Marais, Minn., on the brief), for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The appellants and their predecessors in interest, from 1888 to 1934, inclusive, paid to Cook County, Minnesota, the real estate taxes levied each year by that County upon certain islands in Saganaga, a boundary lake lying partly in the United States and partly in Canada. These taxes were levied by the County and were paid by the taxpayers in the belief that the islands were within the boundaries of Cook County and of the United States. In 1934 it was discovered that the islands were in Canada. On May 31, 1939, the appellants commenced this action to recover from the County approximately eleven thousand dollars which it had received as taxes upon the islands as a result of the mutual mistake as to the location of the islands.¹

The County defended upon the following grounds: (1) That appellants' cause of action with respect to payments made more than six years before the commencement of their action is barred by limitations. (2) That all payments were voluntarily made with full knowledge of the facts. (3) That the mutual mistake, if any, was one of law. (4) That the payments were for taxes levied as required by the laws of the State of Minnesota, and that the moneys received by the County were expended for governmental purposes of the State and its subdivisions and for the benefit and protection of persons and property of citizens and taxpayers, including the appellants.

The case was tried to the court without a jury. The court determined that the recovery of all payments made prior to May 31, 1933, was barred by limitations, and that payments made since that time were voluntary. From a judgment for the County, this appeal is taken.

While the controversy has its roots in the uncertainty which existed for many years as to the exact location of the boundary between the United States and Canada from Lake Superior to the Lake of the Woods, it is unnecessary to refer in detail to the history of the boundary. The description contained in the Treaty of Paris of 1783, 8 Stat. 80, of that portion of the boundary with which we are concerned was so vague and uncertain that the location of the boundary remained in dispute until the Webster-Ashburton Treaty of 1842, 8 Stat. 572. The boundary as determined by that treaty extended up the Pigeon River from its mouth at Lake Superior to a point once known as Fort Charlotte, beyond the Cascades, and from that point along the Pigeon River route, an old water and portage route used by the fur traders and Indians in transporting, by canoe, goods and furs to and from Grand Portage on Lake Superior to the Lake of the Woods and points north and west of that lake. See Pigeon River Improvement, S. & B. Co. v. Cox, Ltd., 291 U.S. 138, 148, 149, 54 S.Ct. 361, 78 L.Ed. 695, and footnotes 4 and 6. This was a route well known to the fur trade during the late seventeen hundreds and the early eighteen hundreds. Over it were transported furs from western Canada destined for Montreal, and trade goods from Montreal to be used in exchange for furs in western Canada. The route ran through Saganaga. Lord Ashburton and Daniel Webster, at the time the Treaty of 1842 was entered into, marked the boundary line through that lake upon a chart, and this line showed that the islands here involved were in Canada, but the chart was not made a part of the treaty by reference or otherwise, and it cannot be said that the treaty fixed the location of the boundary with respect to the islands.

The northerly boundary of Cook County coincides with the international boundary. On February 1, 1879, the United States filed an official government survey and plat showing the public lands lying within Cook County. The islands in question were shown on the plat. On September 15, 1884, the United States issued a patent for these islands to John H. Ferry. Ferry deeded an undivided one-half of them to John M. Williams in 1888, and deeded the other undivided one-half to Lucien M. Williams in 1903. The appellants are the successors in interest of said John M. Williams and Lucien M. Williams, who are now deceased. The islands have always been vacant and unimproved. They were assessed for taxation in and after 1888 by the County. From 1888 until 1934 the County each year levied and collected real estate taxes upon the islands in the same manner that it collected and levied similar taxes upon other lands in the County. The moneys received by the County from the appellants and their predecessors for taxes on the islands were paid out and distributed by the County for governmental purposes in accordance with the laws of the State of Minnesota.

The Root-Bryce Treaty of 1908 between the United States and Great Britain, proclaimed by the President on July 1, 1908, 35 Stat. 2003, provided, in Article V, for the survey, location and monumentation, by Joint Commissioners known as the International Boundary Commission, of the international boundary from Lake Superior to the Lake of the Woods. The treaty recited that this section of the boundary line between the United States and Canada "has never been actually located or monumented along its course by joint action of the two Governments," and it was agreed that the Commissioners "shall reestablish and fix the actual location of said entire boundary * * * and designate the side of the boundary upon which each island adjacent to the boundary belongs, it being mutually understood that the boundary, so far as practicable, shall be a water line and shall not intersect islands lying along its course, * * *." Article V of the treaty then concluded: "The line so defined and laid down shall be taken and deemed to be the international boundary as defined and established under the aforesaid treaties the Treaty of Paris of 1783, 8 Stat. 80, and the Webster-Ashburton Treaty of 1842, 8 Stat. 572 from the mouth of Pigeon River to the northwesternmost point of the Lake of the Woods." The Commissioners appointed in accordance with the terms of the Treaty of 1908 made a joint survey of the boundary, and located and monumented the boundary line. A plat showing the location of the line through Saganaga was prepared by the Commissioners and was signed by them on March 28, 1929. Over the signatures of the Commissioners appears this certificate:

"We certify that this map is one of the quadruplicate set of thirty-six (36) maps prepared under Article V of the Treaty between Great Britain and the United States of America, signed at Washington, April 11, 1908, and that we have marked hereon the Boundary Line as reestablished by the Commissioners designated above, in accordance with the provisions of the said Treaty.

"Signed March 28, 1929."

The plat was filed in the office of the Secretary of State of the United States in March, 1929. On October 27, 1931, the Commissioners concluded their duties under the treaty, and filed their report in the office of the Secretary of State. They had prior to 1930, as directed by the treaty, determined the exact location of the boundary line, and had fixed it by triangulation, traverse stations, boundary monuments, and boundary reference monuments. The plat and report filed by the International Boundary Commission with the Secretary of State showed the exact location of the boundary, and disclosed that the islands in Saganaga, here involved, were in Canada. On August 15, 1934, the United States filed in the General Land Office a supplemental government plat showing these islands to be in Canada. Cook County has received no official notification from the United States that the islands are in Canada. The appellants in 1934, while engaged in negotiations to sell the islands, learned for the first time that the islands were north of the international boundary.

The applicable statutes of limitation are Sections 9185 and 9191, Mason's Minnesota Statutes of 1927. Section 9185 provides: "Actions can only be commenced within the periods prescribed * * * after the cause of action accrues." Section 9191 provides: "The following actions shall be commenced within six years: 1. Upon a contract or other obligation, express or implied, * * *."

The appellants contend that their cause of action accrued, as to each payment, on May 31, 1939, when they first demanded the return of their payments by commencing suit against the County, and that their right to a recovery could not, in any event, have accrued prior to 1934, when the supplemental government plat showing these islands to be in Canada was filed in the General Land Office of the United States. The County contends that the cause of action for the recovery of each payment accrued on the day the payment was made, and that, if this is not so, the cause of action of the appellants accrued not later than October 27, 1931, when the International Boundary Commission made its final report to the Secretary of State of the United States, because the appellants were then charged with knowledge that the islands were in Canada.

The court below found that from and after October 27, 1931, the date when the report of the International Boundary Commission was filed with the Secretary of State of the United States, the appellants had available to them the means of ascertaining the location of the islands, and ruled that they on October 27, 1931, and thereafter had constructive notice of the contents of...