Whitcomb v. Provost

• Decision Date: 21 February 1899
• Citation: 78 N.W. 432,102 Wis. 278
• Parties: WHITCOMB ET AL. v. PROVOST.
• Court: Wisconsin Supreme Court

102 Wis. 278

78 N.W. 432

WHITCOMB ET AL.

v.PROVOST.

Supreme Court of Wisconsin.

Feb. 21, 1899.

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

Action by Henry F. Whitcomb and another, receivers of the Wisconsin Central Railroad Company, against Alfred Provost. From the part of the judgment in favor of defendant, plaintiffs appeal. Reversed.

This is an action of ejectment to recover a quarter section of land which was in actual possession of the defendant, and upon which he had made improvements, and the sole question in issue was whether the defendant could recover the value of such improvements. The land in question was a portion of the lands granted to the state by the United States to aid in the construction of railroads, under the acts of June 3, 1856, and May 5, 1864, earned by the Wisconsin Central Railroad Company, and conveyed to that company by the state. The land was within the place limits of the grant, and was withdrawn from settlement June 12, 1856. On the 26th of June, 1887, the secretary of the interior revoked the order of withdrawal, and formally restored the lands to the public domain, so that they were apparently open for homestead settlement. Public notice of this restoration was made, and on the 4th of November, 1891, the defendant, Provost, entered the land in dispute as a homestead, at the United States land office in the city of Ashland, and paid the fees of the register and receiver, and received the usual receipt of homestead entry, which recited the receipt of $18, being the amount of the fee, in compensation of the register and receiver for the entry of the S. W. 1/4 of section 17, township 45 N., range 4 W., under section 2290 of the Revised Statutes of the United States. The proper entries were made in the register of homestead entries kept in the local office, and upon the plats of government land in said land office, showing that the land had been entered by the defendant as a homestead. The defendant immediately took possession of the land, erected a dwelling house thereon, began clearing away the timber, moved his family thereon, and has ever since continued to reside there. This action was commenced October 10, 1895. The defendant's answer admits the plaintiffs' title, and counterclaims for the value of his improvements since his entry, under section 3096, Rev. St. 1878. The facts were all stipulated, and the value of the improvements was stipulated to be $900. Motions to direct a verdict were made upon both sides, and the court directed a verdict in favor of the plaintiffs for the possession of the land, and in favor of the defendant for the value of the improvements. Judgment was entered upon this verdict, and from so much of the judgment as permits the defendant to recover for improvements the plaintiffs appeal.Howard Morris and Thomas H. Gill, for appellants.

Willis V. Silverthorn, for respondent.

WINSLOW, J. (after stating the facts).

The defendant admitted that, under the decision of the supreme court of the United States in Railroad Co. v. Forsythe, 159 U. S. 46, 15 Sup. Ct. 1020, the plaintiffs had the title to the land in question, and must recover because the same was within the place limits of the grant to the Wisconsin Central Railroad, and hence not open to homestead entry in 1891. The defendant claimed to recover for his improvements, however, under section 3096, Rev. St. 1878, and the only question in this case is whether such a recovery can be sustained. That section provides as follows: “In every case where a recovery shall be had of any land on which the party in possession or those under whom he claims, while holding adversely by color of title asserted in good faith founded on descent or any written instrument, shall have made permanent and valuable improvements or shall have paid taxes assessed, such party, for himself and for the benefit of those under whom he claims, shall be entitled to have from the plaintiff, his heirs or assigns, if he insist upon his recovery, the value of such improvements at the time the verdict or decision against him is given, and the amount paid for taxes, with interest from the date of the payment, to be assessed and recovered as hereinafter provided, and for the payment thereof shall have a lien on the real estate so recovered.”

It is apparent that the defendant, in order to recover for his improvements in the present case, must show the concurrence of four conditions,...