Scheuber v. Held

• Decision Date: 14 October 1879
• Parties: SCHEUBER v. HELD and another
• Court: Wisconsin Supreme Court

2 N.W. 779

47 Wis. 340

SCHEUBER v. HELD and another

Supreme Court of Wisconsin

October 14, 1879

APPEAL from the Circuit Court for Jefferson County.

The defendants appealed from an order sustaining a demurrer to the second and third defenses set up in their answer. The nature of the action and the character of those defenses will sufficiently appear from the opinion.

For the appellants, there was a brief by Jenkins, Elliott & Winkler and oral argument by D. S. Wegg. They argued substantially as follows: 1. The law of England adopted in this country at the time of the revolution, fixed the limitation of actions for lands at twenty years as to subjects, and sixty years as to the sovereign power. 32 Henry VIII, c. 2; 21 James I, cc. 5 16; 9 George III, c. 16. In New York, whence we derive our statute of limitations, 21 James I, c. 16, limiting such actions as to subjects to twenty years, was in substance reenacted; but in 1788 (1 R. L., 184, Sec. 1), the period in which the sovereign power should be barred was reduced from sixty to forty years. In the revision of 1830 it was reduced to twenty years (R. S. of N. Y., 1830, vol. 2, title 2, sec 1, p. 292); and this remained unchanged until 1849, when, by ch. 438 of that year, it was enlarged to forty years, and has since so remained in that state. In this state there was no change of the common-law period of sixty years until the revision of 1858, which took effect January 1, 1859. Ch. 138 of that revision was the statute of limitations both as to real and personal actions; and the 26th section declares that "the limitations prescribed in this chapter shall apply to actions brought in the name of the state or for its benefit, in the same manner as to actions by private parties." This rule continued unchanged until 1877, when said section 26 was amended by ch. 105 of that year, by adding the following words: "provided that this section shall not be so construed as to enable any person to obtain title to any lands, tenements or hereditaments belonging to or owned by the state, by adverse possession, prescription or user." Sec. 4229 of the present revision reads thus "The limitations prescribed in this chapter shall apply to actions brought in the name of the state or for its benefit, in the same manner as to private parties; but no person can obtain title to real property belonging to the state, by adverse possession, prescription or user, unless such adverse possession, prescription or user shall have been continued uninterruptedly for more than forty years." The revisers in their notes to that section say: "Sec 26, ch. 138, R. S. 1858, as amended by ch. 105 of 1877, and amended so as to make an adverse possession of forty years effectual against the state. This limitation has been adopted in other states, and it seems but just that the state should be barred of its right after so long an adverse claim." The sixty-year limitation was held by the English courts to bar the right of the king to file the information of intrusion (which was the form of action there in favor of the crown in such cases). Blackstone (3 Com., 307) says: "So that a possession for sixty years is now a bar even against the prerogative, in derogation of the ancient maxim, nullum tempus occurrit regi." That the statute of New York bars the right of recovery as against the state in forty years, is evident as well from the words of the act as from the decisions in that state. The People v. Clarke, 10 Barb., 155, and 9 N. Y., 366. (See also Piper v. Richardson, 9 Met., 157; Nichols v. Boston, 98 Mass., 39; Tufts v. Charlestown, 117 id., 401; Cutter v. Cambridge, 6 Allen, 20.) From the construction placed on the act of New York before its adoption here, which is binding upon this court (Perkins v. Simonds, 28 Wis., 90; Wiesner v. Zaun, 39 id., 205), it necessarily follows that if the state should bring ejectment, the defense of adverse possession would avail if twenty years adverse possession had occurred after January 1, 1859. Less than twenty years had intervened between that date and this action. The state, however, acquired title to these lands in 1857; the right of action then accrued; and more than twenty years elapsed between that time and this action. The period of sixty years established against the crown by act of parliament had become a part of the law of this state (People v. Clarke, supra; Coburn v. Harvey, 18 Wis., 147); and the said section 26 of the revision of 1858 merely abridged that period. But whether it be viewed in that light or as prescribing a limitation where none before existed, as a reasonable portion of the twenty years (viz., seventeen years) remained after the passage of the act, the statute will be construed as taking effect, and the limitation begin to run from the time when the cause of action first accrued. Parker v. Kane, 4 Wis., 1; Falkner v. Dorman, 7 id., 388; Von Baumbach v. Bade, 9 id., 559; Smith v. Packard, 12 id., 371; Howell v. Howell, 15 id., 55; Mecklem v. Blake, 22 id., 495; Hyde v. Kenosha Co., 43 id., 129.

If, then, this were an action of ejectment, the state would clearly be barred. Do not the same principles apply to the acquisition of an easement to flow lands by prescription? At common law, before the passage of any statutes of limitation against the crown, grants and charters from the crown, and even acts of parliament, were presumed after an enjoyment beyond legal memory, notwithstanding the maxim nullum tempus occurrit regi. 3 Bac. Ab., "EVIDENCE: Presumptive Proof," p. 619; Crimes v. Smith, 12 Rep., 4; Bedle v. Beard, id., 5; Mayor, etc., v. Horner, Cowp., 102; Eldridge v. Knott, id., 214; Roe v. Ireland, 11 East, 280; Goodtitle v. Baldwin, id., 488; Delorme v. Church, 20 L. J., N. S., Ch., 183; Att'y Gen. v. Ewelme Hospital, 17 Beav., 366; Johnson v. Barnes, L. R., 7 C. P., 593; Same v. Same, L. R., 8 C. P., 527. This rule has been fully adopted in this country. 2 Whart. on Ev., § 1348; Archer v. Saddler, 2 Hen. & Mum., 370; Hancks v. Tucker, Taylor, 157, and 2 Hayw. (N. C.), 147; Lessee of Allston v. Saunders, 1 Bay (S. C.), 26. After the passage of acts of limitation, and early in the 18th century, the English courts adopted the rule of presuming grants where the use had existed for the time limited by the statute. After the lapse of that period, profert of the deed of an easement was dispensed with, and the deed was presumed to have been made at some anterior date, and lost by time or accident. "So that now an enjoyment of an easement for the term of twenty years raises a legal presumption that the right was originally acquired by title; and this though the jury should not find as a fact that any deed had ever been made, and although the user began in fact as an act of trespass." Washb. on Easem., 66. Prescriptive rights are now governed by the statute of limitations, the period of prescription varying with that of limitation. That the right to flow lands is an easement, and may be acquired by user for the period prescribed by the statute of limitations, is well settled in this state, at least as between private parties. Rooker v. Perkins, 14 Wis., 79; Smith v. Russ, 17 id., 227; Waller v. McConnell, 19 id., 417; Ruehl v. Voight, 28 id., 153; Mead v. Hein, id., 537; Haag v. Delorme, 30 id., 591; Arimond v. G. B. & M. Canal Co., 31 id., 319; Sabine v. Johnson, 35 id., 198; Aken v. Parfrey, id., 250; Arimond v. Canal Co., id., 46; Cobb v. Smith, 38 id., 21. We have found no case determining whether an easement may be acquired against the sovereign power in analogy to an act of limitations applying to that power. But if a subject may acquire the whole title as against the sovereign by adverse possession, why may he not acquire an easement within the same period of limitation? The greater includes the less. Moreover the statute declares that the limitations prescribed shall apply to actions brought in the name of the state or for its benefit, "in the same manner as to actions by private parties." Now, since, as between private parties, the act limits the time as to easements, it can apply to the state in the same manner as to private parties only when so construed as to permit an easement to be acquired against the state. Again, the proviso added to sec. 26, ch. 138, R. S. 1858, by ch. 105 of 1877, declares that said section shall not be so construed as to enable any person to obtain title to any lands, tenements or hereditaments belonging to or owned by the state, by adverse possession, prescription or user. This shows a legislative understanding that under sec. 26, as it previously stood, "hereditaments" (which include everything corporeal or incorporeal, real, personal or mixed, Co. Litt., 6a) might be acquired as against the state by "prescription or user." This legislative construction is of almost controlling effect so far as the state is concerned. Bonham's Case, 8 Rep., 117; Munger v. Lenroot, 32 Wis., 541; Winslow v. Urquhart, 39 id., 266. The twenty years having elapsed before the passage of the act of 1877, the easement had become vested, and was not affected by that act. Sprecher v. Wakeley, 11 Wis., 432; Hill v. Kricke, id., 442; Knox v. Cleveland, 13 id., 245; Howell v. Howell, 15 id., 55; Osborn v. Jaines, 17 id., 573; Pleasants v. Rohrer, id., 577. The same legislative construction of said sec. 26 is also shown clearly by sec. 4229, R. S. 1878, and the revisers' note to that section, above quoted.

Again although the sovereign power is not, as a general rule, included within statutes of limitations, still ch. 184, Laws of 1862, limiting actions for flowage to ten years, should be construed as applying to the state, because when the mill-dam act was passed, the legislature knew that large tracts of land would necessarily be flowed in the erection of...