Tucker v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 17 December 1895
• Citation: 91 Wis. 576,65 N.W. 515
• Court: Wisconsin Supreme Court
• Parties: TUCKER ET AL. v. CHICAGO, ST. P., M. & O. RY. CO. (THREE CASES).

91 Wis. 576

65 N.W. 515

TUCKER ET AL.

v.CHICAGO, ST. P., M. & O. RY. CO. (THREE CASES).

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Separate actions by Lela M. Tucker and others, Jack Z. Tucker and others, and Charles C. Tucker and others, respectively, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, for damages for taking and occupation of land by defendant, heard together by stipulation. From judgments for plaintiffs in each action, defendant appeals. Affirmed.

These cases were proceedings upon behalf of the respective plaintiffs to ascertain and determine the amount of compensation to which they claim to be entitled by reason of the taking and occupation of certain lands by the defendant company for railroad purposes, and were instituted under section 1852, Rev. St. By stipulation, they were tried and decided upon the same evidence. Separate verdicts having been found for the plaintiffs in each case, from each judgment rendered thereon the defendant company appealed. The respective plaintiffs, Lela M. Tucker, Jack Z. Tucker, and Charles C. Tucker, are the children and heirs at law of Charles C. Tucker, deceased; and his widow, Mary A. Tucker, was joined as a plaintiff in each case. The premises in question are a part of the town site of Ashland, in what was formerly La Pointe county, and were entered by the county judge for that county in trust for the settlers, under the act of congress of May 23, 1844 (5 Stat. 657). A patent was issued in due form of law upon said entry. The evidence tended to show that Martin Beaser, Asaph Whittlesey, and George Kilbourne were the first settlers on said premises, and that Charles C. Tucker, since deceased, received a conveyance from Asaph Whittlesey of a one-half interest in his lots on the town site August 28, 1856, and that on April 12, 1872, the county judge of the county, under chapter 95, Laws Wis. 1856, entitled “An act authorizing county judges to perform and discharge the trusts specified in said act of congress of May 23, 1844,” conveyed to Whittlesey and Tucker the lots in question. In an action for partition brought by the plaintiffs in these cases against Lucy Whittlesey, Delia Green and others, heirs at law and grantees of Asaph Whittlesey of the said premises, and claiming title under said Asaph Whittlesey, the lots in question in these proceedings were adjudged and decreed to the plaintiffs as heirs at law of said Charles C. Tucker, deceased, by the circuit court of Ashland county, April 5, 1888. Jack Z. Tucker and wife conveyed to the plaintiff Lela M. Tucker all their right, title, and interest to lots 1, 2, 3, 10, 11, and 12, block 17, in Ashland, claimed by her July 5, 1892; and on the 8th day of the same month, the said Charles C. Tucker assigned, transferred, and set over to the said Lela M. Tucker all his right, interest, claim, and demand against the defendant growing out of the taking and occupation, for railroad purposes, of a right of way across said lands; and the said Jack Z. Tucker, on the 14th of the same month, executed to her a like assignment of all his right and demand in respect to the same premises. The said Lela M. Tucker and Charles C. Tucker also made similar assignments to the plaintiff Jack Z. Tucker, in July, 1892, of their respective rights, claims, and demands against the defendant for the taking and occupation for railroad purposes of a right of way across the lands claimed by him; and in like manner similar assignments were made by Jack Z. Tucker and Lela M. Tucker of their claims and demands against the defendant for the same reason, in respect to lot 12, block 30, in the city of Ashland, to the said Charles C. Tucker. The defendant gave in evidence several tax deeds, duly recorded, on sales of the premises in question, made while the said heirs were minors, acquired by E. H. Abbot, but they have redeemed the said premises from all tax sales before arriving at the age of 21 years. The defendant also offered in evidence condemnation proceedings for a right of way across said several lots, instituted by the Ashland Railway Company in 1882, against said Abbot and others; but these plaintiffs were not parties thereto, and the proof wholly failed to show that the strip of land taken and used by the defendant for a right of way was in any way identical with the premises said to have been taken by the Ashland Railway Company, or that the defendant had succeeded to any of its rights. Upon said proceedings there was an award of $20 to the said Abbot, which amount was paid to him for the strip of land across said lot 12. These proceedings were instituted August 27, 1892. Lela M. Tucker became 21 years of age March 30, 1892; Charles C. Tucker, March 3, 1890; and Jack Z. Tucker, August 19, 1888. The defendant took and entered into possession and use of the premises in question in June, 1883, but not under any written instrument or color of title. Evidence was offered and received tending to show that Martin Beaser, Asaph Whittlesey, and George Kilbourne were not the proper beneficiaries of the title passed to the county judge for the benefit of the settlers under the act of congress. It was also insisted that the plaintiffs were barred of their right to recover by virtue of the statute of limitations. Rev. St. §§ 4215, 4222.Tomkins & Merrill, for appellant.

T. L. Kennan and Sanborn & Dufur, for respondents.

PINNEY, J. (after stating the facts).

1. The effect of the patent to the county judge, and his deed of conveyance to Asaph Whittlesey and Charles C. Tucker, since deceased, was to vest the legal title of the premises in question in said Whittlesey and Tucker, as tenants in common. The decree in the partition suit of Tucker v. Whittlesey, 74 Wis. 74, 41 N. W. 535, and 42 N. W. 101, set off and vested the legal title to the entirety of the premises in Lela M., Charles C., and Jack Z. Tucker, heirs at law of said Charles C. Tucker, deceased, as tenants in common. Each of said heirs thus became the owner in fee of the undivided one-third of each of said lots. Lela M. Tucker, in her action, relies upon her title to such undivided third, and an assignment from both of her cotenants of their claims and demands for damages for defendant's taking and using a right of way across the lots she claims, described in her proceeding, and also by virtue of a deed of conveyance of one-third of said premises to her from one of her cotenants; while Charles C. Tucker and Jack Z. Tucker rely upon their respective titles to one undivided third of the premises which they each claim,...