Pollnow v. State Dept. of Natural Resources

Decision Date27 March 1979
Docket NumberNo. 76-009,76-009
Citation276 N.W.2d 738,88 Wis.2d 350
PartiesOscar W. POLLNOW and Dorothy Pollnow, Appellants, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES and Lester P. Voight, John A. Beale, and James A. Kurtz, Respondents.
CourtWisconsin Supreme Court

David J. Smith (argued), and O'Melia, Melby, Smith & Schiek, S. C., Rhinelander, on brief, for appellants.

John E. Kofron, Asst. Atty. Gen., argued, and Bronson C. La Follette, Atty. Gen., on brief, for respondents.

DAY, Justice.

This is an appeal by Oscar W. Pollnow and Dorothy Pollnow, his wife, from a judgment of the Oneida County Circuit Court, the Honorable Ronald D. Keberle, presiding, entered March 10, 1976 determining that the State of Wisconsin has a fee simple absolute in a disputed parcel of land, and from an order entered June 14, 1976 denying the Pollnow's motion for relief from the judgment or for a new trial. The strip of land was formerly a segment of the right of way of the Milwaukee Road and runs through Pollnows' land.

The questions raised on appeal are:

1. Was the railroad granted a right of way across the plaintiffs' land by the Railroad Right of Way Act of 1875?

2. Did the railroad acquire a fee simple absolute in the property occupied by its right of way by adverse possession, or is the interest in the right of way merely an easement?

3. If the railroad acquired only an easement by prescription through adverse possession, can that easement be conveyed to the state?

4. Did the clause in the deed excepting and reserving the railroad right of way except the land beneath the right of way from the conveyance?

We conclude that the railroad acquired only an easement in the disputed property, and that the state did not acquire good title when it obtained quitclaim deeds from the Milwaukee Road and from the Pollnows' predecessor in the title.

The plaintiffs, Oscar and Dorothy Pollnow bought a parcel of land in Oneida County on January 18, 1971 from the estate of Jacob Cook. The parcel is in Government Lot 4, Section 1, Township 37N, Range 6E. A right of way ran across the property and was used and maintained by the Milwaukee Road until 1973.

Government Lot 4, in Section 1, Township 37 North, Range 6 East, Oneida County, was conveyed by the United States to Jessee Russell, by patent dated June 30, 1884. In 1887, the Chicago, Milwaukee and St. Paul Railway Co. built a railroad across that parcel. Pursuant to 43 U.S.C. sec. 937, 1 the railroad filed a profile map of its right of way with the Secretary of the Interior in 1887. The map was approved by the United States government in 1887.

In 1973, the railroad was permitted to abandon the line by the Public Service Commission and the Interstate Commerce Commission. The State of Wisconsin Department of Natural Resources bought the railroad right of way by quitclaim deed from the Milwaukee Road in 1973 to provide a state park trail from Minocqua to Heafford Junction. The trail is to be used for bicycles and hikers in the summer, and snowmobiles in the winter. The railroad tracks have been removed from the property.

In September, 1975, after the commencement of this action, the state obtained a quitclaim deed from Jane Strong (nee Jane B. Tews) who was a predecessor in title to the Pollnows. Ms. Tews had acquired the parcel of land (including the parcel now owned by the Pollnows) by quitclaim deed on March 1, 1937. On April 16, 1937, she conveyed her interest in the entire parcel by special warranty deed to Jake Cook. However, the deed contained the following language:

"There is excepted and reserved from this conveyance the right of way of the Chicago, Milwaukee and Saint Paul Railway as the same now crossess (sic) said premises."

The Pollnows bought their 18.3 acre parcel from Cook, "subject to an easement for the existing railroad right of way."

In August, 1974, the Department of Natural Resources wrote to Mr. Pollnow, asserting its ownership of the land formerly occupied by the railroad, and warning him that he faced criminal prosecution if he did not remove his fence from the right of way. The Pollnows brought this action to quiet title to the disputed strip of land July 29, 1975.

The trial court held that the railroad had acquired a fee simple by adverse possession of the right of way, and that the state had acquired good title by the quitclaim deed from the railroad company. This appeal followed.

ISSUE # 1: WAS THE RAILROAD GRANTED A RIGHT OF WAY ACROSS THE PLAINTIFFS' LAND BY THE RAILROAD RIGHT OF WAY ACT OF 1875?

43 U.S.C. Sec. 934, 2 popularly known as the General Railroad Right of Way Act of 1875, provides as follows:

"The right of way through the public lands of the United States is granted to any railroad company duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road. Mar. 3, 1875, c. 152 § 1, 18 Stat. 482."

It is clear that if the railroad was granted its right of way by the Railroad Right of Way Act of 1875, it was granted only an easement, not a fee. Great Northern Railway Co. v. United States, 315 U.S. 262, 271, 62 S.Ct. 529, 86 L.Ed. 836 (1942). To secure the benefits of the act, a railroad company must file a profile of its road with the Secretary of the Interior under 43 U.S.C. Sec. 937. The right of way passes to the railway upon approval of the profile map by the Secretary or upon actual construction of the road. Minneapolis, St. Paul and Sault Ste. Marie Railway Company v. Doughty, 208 U.S. 251, 28 S.Ct. 291, 52 L.Ed. 474 (1908). The act, by its own terms, applied to Public lands of the United States. The patent to the land in question was granted to Jesse Russell in 1884. The railroad's claim to the right of way does not derive from the Railroad Right of Way Act of 1875, since it did not file its profile map until 1887, the same year the track was constructed. By that time, the land was no longer public land. There is no authority for the Pollnows' argument that the right of way dates from the time the railroad company issued bonds in 1880. See 43 U.S.C. Sec. 937, Supra at footnote 1.

ISSUE # 2: DID THE RAILROAD ACQUIRE A FEE SIMPLE ABSOLUTE IN THE PROPERTY OCCUPIED BY ITS RIGHT OF WAY BY ADVERSE POSSESSION, OR IS ITS INTEREST IN THE RIGHT OF WAY MERELY AN EASEMENT?

Adverse possession is defined by Sec. 893.09, Stats. (1975), in the following manner: 3

"893.09. Adverse Possession, What Is For the purpose of constituting an adverse possession by a person claiming title, not founded upon some written instrument or some judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only:

"(1) When it has been protected by a substantial inclosure.

"(2) When it has been usually cultivated or improved."

Northwoods Development Corp. v. Klement, 24 Wis.2d 387, 129 N.W.2d 121 (1964), which construed the predecessor statute to sec. 893.09, made clear that the statute carries over the common law definition of adverse possession. For possession to be adverse under sec. 893.09, it must be open, notorious, hostile and continuous for twenty years. Id. at 392-394, 129 N.W.2d 121.

The railroad ran its trains over the right of way on a daily basis from 1887 to 1973. It constructed and maintained a five-wire fence on either side of the center of the railroad tracks. There is no argument in this case that the railroad's occupation was insufficient to constitute adverse possession. Rather, the question is what is the nature of the interest that the railroad acquired.

The majority rule is that a railroad company acquires by prescription or adverse possession only an easement in a right of way. See cases collected at 127 A.L.R. 517. See also 3 Nichols On Eminent Domain, Sec. 11.1. Two basic lines of reasoning have been used by the courts in reaching this result. One view is that the railroad can not acquire an interest in the property broader than the use it makes of the land occupied. Another approach taken by the courts is to analogize to the interest acquired by condemnation.

In Michigan Central Railroad Company v. Garfield Petroleum Corp., 292 Mich. 373, 290 N.W. 833, 127 A.L.R. 507 (1940), the issue was whether the railroad could acquire title to mineral rights beneath the right of way.

The court commented that

"railroad corporations are, in a marked degree, to be treated differently from other persons and corporations in regard to the acquisition of land by adverse possession. Property of individuals taken by railroad corporations for the purpose of constructing their roads is, in legal contemplation, taken not for private use, but for a public use, and the tenure of railroads in lands condemned for such a purpose is in the nature of a trust for public use, subject to the supervision of the government." Id. at 375-6, 290 N.W. at 834.

The court also pointed out that

"(i)f by right of eminent domain, plaintiff in this case could acquire title to mineral rights, it would be clear that such rights were based upon a showing of necessity, as otherwise there would be no authority for such proceedings under the Constitution. If such rights could not be acquired by condemnation because of lack of necessity, it would disprove a title claimed to be acquired by adverse possession." Id. at...

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