Van Camp v. Menominee Enterprises, Inc.

• Citation: 68 Wis.2d 332,228 N.W.2d 664
• Decision Date: 06 May 1975
• Docket Number: No. 442,442
• Parties: Cyril F. VAN CAMP et al., Respondents, v. MENOMINEE ENTERPRISES, INC., a Wisconsin Corp., Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 664

228 N.W.2d 664

68 Wis.2d 332

Cyril F. VAN CAMP et al., Respondents, v. MENOMINEE ENTERPRISES, INC., a Wisconsin Corp., Appellant.

No. 442.

Supreme Court of Wisconsin.

May 6, 1975.

Rehearing Denied June 30, 1975.

The order appealed from denied the defendant-appellant's motion for summary judgment and ordered judgment for the plaintiffs-respondents upon their complaint seeking a temporary and permanent injunction.

Preloznik & Frederickson, S.C., by Joseph F. Preloznik and Steven A. Felsenthal, Madison, for appellant.

Vance M. Waggoner, Reedsburg, for respondents.

BEILFUSS, Justice.

This is a class action arising out of transactions with non-Menominee Indians relating to the Legend Lake real estate development project. This project was the subject of this court's decision in Tomow v. N. E. Isaacson & Associates, Inc. (1973), 60 Wis.2d 1, 208 N.W.2d 824, certiorari denied 414 U.S. 1137, 94 S.Ct. 883, 38 L.Ed.2d 763. The pertinent historical facts are set forth in that decision and will not be repeated in detail here. More specifically, this case involves the claimed rights of certain non-Menominee purchasers or property within the project boundaries to hunt and fish on the other land owned by the appellant Menominee Enterprises, Inc. (MEI), a Wisconsin corporation.

Under the terms of the 1854 Treaty of Wolf River, 10 U.S.Stat. at L., p. 1064, in exchange for other lands previously claimed and held by the Menominee Indians, the United States granted to them certain lands, the bulk of which comprised what is now Menominee county 'to be held as Indian lands are held.' This land is approximately 234,000 acres.

In 1961, pursuant to the Menominee Termination Act, ¹ federal supervision over the Menominees' affairs and property was discontinued, and the Secretary of the Interior was authorized 'to transfer to the tribal corporation . . . the title to all property, real and personal, held in trust by the United States for the tribe.' 25 U.S.C.A. p. 725, sec. 897. MEI is the corporation formed to receive, hold, manage and operate such property. MEI is owned by Menominee common stock and voting trust which is, in turn, owned by the members of the Menominee tribe.

A 'Termination Plan,' approved by the Secretary of the Interior as part of the overall Termination Act, provided that no more than 14,500 acres (without amendment of the articles) could be set aside to be sold to individual Menominees and non-Menominees. If further provided that in order to achieve economic self-sufficiency the recorational resources be developed by creation of several larger lakes from smaller ones and that cottage sites be developed around them.

On July 9, 1968, MEI entered into a partnership agreement with N. E. Isaacson & Associates, Inc., to form a joint venture known as 'Lakes of the Menominees' (LOM), 'for the purpose of developing and marketing certain lands situated in Menominee county, Wisconsin' owned by MEI. During the period between September 12, 1968 and April 1, 1971, MEI conveyed about 5,170 acres of land to LOM by warranty deeds. MEI received $150 per acre for the conveyance, or $775,550. Prior to dissolution of LOM on about June 30, 1972, MEI had received about $1,250.000 through its interest in LOM, over and above the cost of the land conveyed.

One of the developed lots sold by LOM was purchased by the plaintiffs-respondents Cyril F. Van Camp and his wife. In the Offer to Purchase accepted May 16, 1970, LOM made the following representation:

'That buyers will receive personal and non-assignable hunting and fishing privileges on Menominee County lands.

'The warranty and representation made herein survive the closing this transaction.'

The actual conveyance was accomplished by warranty deed executed June 15, 1970. The deed makes no mention of hunting and fishing privileges. At the real estate closing, respondent Cyril F. Van Camp was issued an identification card signed by George W. Kenote, vice-president of MEI, and a salesman for LOM, which provides as follows:

'This will identify CYRIL F. VAN CAMP, Lot 79 in Brave Island Addition to Legend Lake as a property owner in Menominee County and extends Hunting and Fishing Privileges on all company property. State Laws and Regulations and Local Rules must be observed.'

The card bears, along the side, the inscription 'Menominee Enterprises Inc.' along with MEI's logogram.

The plaintiff-respondent Van Camp stated by affidavit that since purchasing his property he frequently hunted and fished on MEI land and, when on occasion he was stopped by authorities, upon displaying his Wisconsin license and his MEI identification card he was permitted to continue hunting or fishing.

On July 17, 1970, the board of directors of MEI unanimously adopted the following motion:

'. . . that lands owned by Menominee Enterprises, Inc. shall be closed to hunting and fishing activities of LAKES OF MENOMINEES lake lot purchasers effective August 1, 1970, for sales made on and after that date; that this cut-off date is established in order to allow the Lakes of the Menominees project sufficient time to effect the necessary changes in their sale program; further, that it is not the intent that this shall affect sales made prior to August 1, 1970.'

Prior to August 1, 1970, every offer to purchase Legend Lake property contained a representation as to hunting and fishing rights identical to that contained in respondents' offer; subsequent to that date the language was deleted.

On March 9, 1973, respondents received a letter from MEI informing them as follows:

'This is notice that the Board of Directors of Menominee Enterprises, Inc., at their meeting of August 18, 1972, affirmed their position that all access permits to lands owned by Menominee Enterprises, Inc. for the purpose of hunting or fishing shall be declared invalid. Management has been instructed to pick up all such permits and our personnel have been instructed not to recognize any authority purportedly conveyed thereunder by the named holder of such card. Therefore, effective November 17, 1972, any 'permit' that you may have in your possession will not be recognized as a bona fide access permit to enter upon or over lands owend by Menominee Enterprises, Inc. All of our lands will be posted for 'No Trespass'.

'The Board of Directors base their directive, in part, on recognition that the fishing, hunting and trapping are exhausting the natural resources of the area without adequate fish, game or wildlife management for the preservation of the species by reasonable restocking.

'Menominee Enterprises, Inc. personel have been instructed and authorized to take whatever steps are necessary to prevent and prohibit encroachment on their lands.'

This action was commenced on April 10, 1973. In their amended complaint, the Van Camps alleged that they were bringing the suit for themselves and as representatives of the class of purchasers, about 900 in number, who bought property from LOM prior to August 1, 1970. The complaint sought temporary and permanent injunctions enjoining MEI and its agents from 'rescinding, revoking, restricting or in any way interfering with the hunting and fishing privileges warranted and represented.'

MEI, in its answer to the amended complaint, alleged that MEI was without authority to convey hunting and fishing rights, that LOM was without authority to convey such rights, and that in fact such rights were never conveyed.

We are dealing here with all the Menominee county land owned by MEI, not just the parcels conveyed to others.

MEI moved for summary judgment. Extensive affidavits, exhibits and briefs were filed and on September 13, 1973, the court issued an order denying the motion of MEI and granted summary judgment for the Van Camps. ² Such order permanently enjoined MEI and its agents from 'rescinding, revoking, restricting or in any way interfering with the hunting and fishing privileges warranted and represented to Plaintiffs and all other persons whom they represent, by contracts entered into prior to August 1, 1970.'

MEI appeals.

The trial court held that this is a proper class action. This determination is not challenged in any manner in this appeal and will not be further considered.

The appellant MEI asserts that the Treaty of 1854 between the Menominee tribe and the United States guaranteed to the Menominee tribe the exclusive right to hurt and fish upon the Wolf River reservation, which includes all the land in question. This assertion is correct as determined in State v. Sanapaw (1963), 21 Wis.2d 377, 383, 124 N.W.2d 41, certiorari denied 377 U.S. 991, 84 S.Ct. 1911, 12 L.Ed.2d 1044, rehearing denied 379 U.S. 871, 85 S.Ct. 17, 13 L.Ed.2d 78, and Menominee Tribe v. United States (1968), 391 U.S. 404, 406, 88 S.Ct. 1705, 20 L.Ed.2d 697.

MEI further contends that the tribe never relinquished such rights and that when, pursuant to the Termination Act, the United States conveyed title to the land to MEI it did not and could not convey the hunting and fishing rights. MEI now argues it was never capable of transferring such rights to LOM who, in turn, was likewise powerless to transfer them to the respondents.

The respondents' only reply to this argument is that the conduct of MEI indicates a contrary conclusion because the corporation leases out portions of its lands to the State of Wisconsin for public recreational purposes, including hunting and fishing. While this argument may be lacking in legal authority, it does bear scrutiny. MEI asserted at oral argument that it does not question the right of the respondents to hunt and fish on the property they purchased, but only argues that they have no right to do so on the entire balance of land owned by the corporation. However, by analogy to the respondents' argument, it must be noted that if MEI is correct in its contention that the tribe never relinquished its hunting and fishing rights in the property to the extent the corporation...