United States v. Schwarz

• Decision Date: 03 May 1972
• Docket Number: No. 71-1392.,71-1392.
• Citation: 460 F.2d 1365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles J. SCHWARZ et al., Defendants-Appellants, and Fremont C. Woller et al., Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.2d 1365 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles J. SCHWARZ et al., Defendants-Appellants, and Fremont C. Woller et al., Defendants.

No. 71-1392.

United States Court of Appeals, Seventh Circuit.

Argued February 3, 1972.

Decided May 3, 1972.

Rehearing Denied June 19, 1972.

Richard P. Tinkham, Tinkham, Smith, Bliss & Patterson, Wausau, Wis., for defendants Charles J. Schwarz, Grace M. Schwarz, William F. Yeschek and Mary Lou Yeschek.

John O. Olson, U. S. Atty., Madison, Wis., Shiro Kashiwa, Dirk D. Snel, Dept. of Justice, Land & Natural Resources Div., Washington, D. C., Robert S. Lynch, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.

HASTINGS, Senior Circuit Judge.

The United States of America filed this action seeking a decree to quiet title to certain real estate in Wisconsin on behalf of the heirs of a Chippewa Indian patentee of the land as the result of adverse claims and actions of an adjacent landowner. Following a trial to the court,¹ without the intervention of a jury, the trial court made detailed findings of fact, stated its conclusions of law in an unpublished memorandum opinion and entered a judgment and decree thereon favorable to the plaintiff. Defendants Schwarz and Yeschek alone have appealed from the entire judgment, except that part thereof which dismissed the cross-complaint of defendants Woller and Reinhardt against them. We affirm.

For purposes of clarity and identification we deem it advisable to set out in full the findings of fact made by the district court:

"Facts.

The subdivision lines in Township 40 North, Range 4 East, 4th Principal Meridian, Vilas County, in this Western District of Wisconsin, were surveyed from July 22, 1865, through July 31, 1865. The plat of survey for this township was approved October 15, 1865 and is the official plat of this township. There have been no subsequent official surveys or resurveys. Government Lots 4 and 5 were shown in said plat of survey as they appear in the following diagram:

The acreage of Lot 4 is shown on the plat of survey as 57.7, and that of Lot 5 as 54.4. The line dividing Lots 4 and 5, as shown on the plat, coincides with the quarter-section line of Section 23. The irregularly shaped line along what appear to be the eastern edges of Lots 4 and 5 represents a rough approximation of the meander lines described in the surveyor's notes; the meander lines, in turn, were intended to assist in determining the approximate size of the said lots by indicating the approximate location of the shore line of a lake which has since come to be known as Tippecanoe Lake.

The actual boundary of Tippecanoe Lake as it existed in 1961, and at the time of trial, and the meander line as described in 1865, are as they appear in diagram B, on the following page.

On diagram B, a peninsula which extends into Tippecanoe Lake has been shaded, thus:

The cross-shaded area represents that portion of the peninsula which lies south of the dividing line between Lots 4 and 5 if said dividing line were to be extended in an easterly direction. The entire peninsula contains about 16.3 acres; the disputed portion of the peninsula contains about 3.8 acres.

The depth and configuration of Tippecanoe Lake as of the time of trial are approximately as they were in 1865. The peninsula is what is known to geologists as an outwash ridge. The bay between the west shoreline of the lake and the west and south shores of the peninsula consists of two waterfilled depressions, or kettles. The most narrow and most shallow stricture in the bay is an inter-kettle ridge. At this point, the bay is about 40 feet wide. At this point, also, in the autumn, when water levels typically are not high, depth of the water in the bay is about two and one-half feet to three feet. Unless there may have been brief unusually dry periods over the years, the depth of the water in the bay has not been less than two and one-half feet to three feet, and it has probably been greater in the past. From 1865 until the present, the depth of the water in the lake, including the water in the bay, has been sufficient to float logs and boats.

Lot 4 was allotted to Be bo ke we (also known as John Whitescott), a Chippewa Indian, pursuant to Article 3 of a treaty concluded September 30, 1854, with the Chippewa Indians of Lake Superior and the Mississippi, 10 Stat. 1109, and a patent was issued to Be bo ke we December 28, 1895. Said patent provided that the allottee and his heirs could not sell, lease, or otherwise alienate the tract without the consent of the President of the United States.

Be bo ke we died intestate July 5, 1919, and his heirs were determined to be Annie Whitescott, one-third, Mary Whitescott, one-third, and Margaret Whitescott, one-third. Margaret Whitescott died intestate October 13, 1932, and her heirs were determined to be Annie Whitescott (or Annie Whitescott Abraham), one-half, and Mary Whitescott (or Mary Whitescott Theobold), one-half.

Lot 5 was originally patented to an Indian who, with the necessary consent of the Secretary of the Interior, conveyed the property. The lot passed through a chain of title until it was conveyed in 1947, by warranty deed, to William Yeschek and Elsie Yeschek, who were the parents of the William F. Yeschek, named as a defendant in this action; the deed described the property simply as Government Lot 5, and contained no express description of any portion of the peninsula. Yeschek, Sr., immediately built a road through Lot 5, west of Tippecanoe Lake, running in a northerly-southerly direction, and extended it into and across Lot 4 in an easterly direction and then down the peninsula, in a southerly direction, to that portion of the peninsula now in dispute. His intention was to use the road to service the now disputed portion of the peninsula, which he considered to be a part of Lot 5. The construction and use of this road by Yeschek, Sr., was well known to the Whitescotts, who owned Lot 4, and it was well known to representatives of the Great Lakes Indian Agency, of the United States Department of the Interior. However, the Agency advised Yeschek, Sr., in 1947, and again in 1952, of the Agency's opinion that the disputed portion of the peninsula was a part of Lot 4 and not a part of Lot 5.

The defendant in this action, William F. Yeschek, Jr. (hereinafter "defendant Yeschek") acquired Lot 5 from his parents, and in 1960 the defendants Yeschek conveyed the now disputed portion of the peninsula to the defendants Schwarz, for a consideration, by a warranty deed in which the property was described as a part of Lot 5. In 1965, the defendants Schwarz conveyed the disputed portion of the peninsula to the defendants Woller (an undivided one-half interest) and to the defendant Louise Reinhardt (an undivided one-half interest), for $12,000 by a warranty deed in which the property again was described as a part of Lot 5. The Schwarzes received $5000 in cash, and took a note for $7000, secured by a purchase money mortgage from the defendants Woller and the defendants Reinhardt, in which the property again was described as a part of Lot 5.

Defendants Woller and Reinhardt proceeded to plat and to improve to a small extent the now disputed portion of the peninsula, preparatory to selling it off in lots. Defendants Woller and Reinhardt defaulted on their mortgage payments, and the defendants Schwarz commenced a foreclosure action in a Wisconsin state court on May 20, 1966, against defendants Woller and Reinhardt. The defendants Woller and Reinhardt were duly served, but failed to appear in the foreclosure proceedings; and findings of fact, conclusions of law, and a judgment of foreclosure were entered in August, 1966. The state court found that the defendants Woller and the defendant Reinhardt had given a valid mortgage to the defendants Schwarz, and that the mortgagors had defaulted on the mortgage note. On December 29, 1967, this present action was commenced in this court by the United States. On December 20, 1967, the defendants Schwarz bid in the property at the sheriff's sale in the state court foreclosure proceeding, and in January, 1968, they obtained a sheriff's deed.1 No appeal has been taken from the judgment in the state court proceeding, and the time for appeal has expired. No proceeding of any kind has been commenced in the state courts to set aside the foreclosure judgment.

1. In 1969, while this action was pending in this court, the defendants Schwarz delivered a quit claim deed to the disputed property to the defendants Yeschek.

In addition to their one-half of the $5000 down payment to the defendants Schwarz, the defendants Woller incurred about $751.25 in surveying expenses, attorneys' fees, and travel costs in connection with the transaction, and the defendant, Louise Reinhardt incurred about $1071 in expenses for surveying, repairs to road, snowplowing and bulldozing, and similar items.

Defendant Vilas County has assessed real estate taxes since 1965 on the disputed portion of the peninsula.

One issue of fact, which may be pertinent, remains to be mentioned. Defendants Yeschek and Schwarz contend, and emphasize the contention, that in the 1865 government survey an island in Tippecanoe Lake located easterly from the northerly portion of Lot 4 was meandered and surveyed so as actually to have been included as a part of the mainland and as a part of Lot 4, whereas the entire peninsula in question was not. See diagram B, above. A finding of fact on this point is to be made only with great difficulty. The meander lines include a relatively small portion of the island in question, as it exists in fact. As against defendants' interpretation, it may be contended with equal force that the somewhat rectangular projection of the meander line in an easterly direction represents a crude attempt to outline the peninsula...