Wis. Realty Co. v. Lull

• Decision Date: 11 April 1922
• Citation: 177 Wis. 53,187 N.W. 978
• Parties: WISCONSIN REALTY CO. v. LULL ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 53

187 N.W. 978

WISCONSIN REALTY CO.

v.LULL ET AL.

Supreme Court of Wisconsin.

April 11, 1922.

Appeal from Circuit Court, Price County; G. N. Risjord, Judge.

Action by the Wisconsin Realty Company against John Lull, Lee Willard, and another. Judgment for plaintiff, and named defendants appeal. Affirmed.

This action is brought to quiet title to certain lands in section 21, town 39, range 2 west, in Price county.

This section was surveyed by the United States government in 1856 with the usual field notes by the surveyor. A plat was made therefrom and properly recorded. Such plat has been treated up until the time of this action as a substantially correct representation of the situation. The descriptions as thereon given have been substantially conformed with for taxation purposes at all times and in the subsequent conveyances and agreements except as hereafter specified.

As so platted and as above indicated the Flambeau river appeared to be entirely within the N. E. quarter of said section. The plat represented lot 1, said to contain 65.48 acres, as being that much of said N. E. 1/4 as was north of the river as platted. Lots 2 and 3, of 31.06 and 38.62 acres, respectively, comprise the S. 1/2 of said N. E. 1/4 south of the platted river. Lot 4, platted as 50.85 acres, comprised the remaining portion of said N. E. 1/4 which lay west of the platted river, together with the 40 acres of the N. E. 1/4 of the N. W. 1/4 of said section.

By a survey made in 1917, conceded to be correct, it appears that the Flambeau river is a substantial distance to the south and west from the place indicated on the plat made from the government field notes, and substantially all outside of such N. E. 1/4. The space between the river as originally platted and as it actually exists include about 173 acres.

The meander lines of the Flambeau river in said section, as found in the original field notes correspond, both as to courses and distances, substantially with those as found in the survey in 1917.

In the original four patents from the United States for this particular section the descriptions of the property therein contained were, so far as here material (abbreviated) as follows:

“The N. E. 1/4 or lots 1, 2 and 3 of sec. 21, T. 39, R. 2 W. * * * containing 135.15 A according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general.”

“The N. E. 1/4 or lot 4 and the W. 1/2 of the N. W. 1/4 and the S. E. 1/4 of the N. W. 1/4 of sec. 21, etc., containing 170.85 A according to the official plat,” etc. (same as above).

“The S. W. 1/4 of sec. 21, containing 160 A according to,” etc. (as above).

“The S. E. 1/4 of sec. 21, etc., containing 160 A according,” etc. (as above).

In 1904 the J. L. Gates Land Company had acquired by mesne conveyances or agreements the title or the right to obtain title to all the land in section 21 involved in this situation, namely, all of the N. E. 1/4 of said section 21, and so much outside of said quarter section as would include the land covered by the Flambeau as it actually exists.

In 1904 negotiations were had on behalf of a Mrs. Tompkins for the purchase of that which was then designated as lot 1. The price was fixed at about $7.50 per acre, which at the assumed acreage of 65.48 A. amounted to $490, subsequently reduced to $400 as the purchase price.

Some question appeared to have been then raised, so far at least as the proposed purchaser was concerned, as to whether or not the Flambeau river did not, as a matter of fact, extend further to the south than as represented on the map, but it does not appear that such substantial difference as actually exists was known to any of the interested persons at that time.

Upon inquiry a specific request on her behalf was made in December, 1904, of the land company as to whether this lot 1 comprised all of the land north of the Flambeau river in the N. E. 1/4. It was answered by letter as follows:

“Will state lot one does comprise all of the land north of the Flambeau river in the N. E. 1/4 of section 21. I herewith inclose you a plat showing the land as it lies in relation to the river and the lot contains 65.48 acres according to plat book”

--such plat being a copy of the one then recorded as above stated.

Correspondence was had between the land company and an attorney on behalf of defendant Lull with reference to the completion of the transaction. A warranty deed prepared by the land company was returned and objected to on the ground that it did not contain the description as made in the land contract because limited in the offered deed to the N. E. 1/4 of the N. E. 1/4 of section 21 or lot 1. It was then insisted that the warranty deed must conform to the description in the land contract with Mrs. Tompkins. This was subsequently done, the description therein, so far as here material, is set out in the opinion.

Defendants paid the consideration and accepted the deed in 1905, and thereafter continued to pay taxes on the property as described on the plat, namely, as lot 1. Taxes were paid by others claiming to own the property described as lots 2, 3, and 4.

In 1910, by various mesne conveyances, the plaintiff became the owner, so far as the apparent paper title was concerned, of that which, according to the government plat, would include all of the 173 acres between the river as actually existing and as platted by the government. The plaintiff now brings this action to quiet its title to such 173 acres. The defendants assert title thereto by virtue of their prior warranty deed of 1905 from the then owner of the entire property, the land company. Other issues were presented as to tax deeds which need not be discussed. The court made findings of fact and then conclusions of law, which are as follows:

“1. That the boundary line between government lot 1 and government lots 2, 3 and 4, in said section 21 is a line midway at all points between the meander lines of the Flambeau river as the same appear on the official government plat of said lots, and that plaintiff is and at the time of the commencement of this action was the owner in fee simple absolute, of all the lands in said section 21 lying south and west of said boundary line, and that its right, title and interest in said premises, as such owner in fee simple, be declared and established.

2. That the defendants and each of them and all persons claiming under them, or any of them, subsequent to the filing of the notice of the pendency of this action, be forever barred from all claim of right or title to any of the lands in said section 21 lying south and west of the aforesaid boundary line.

3. That the plaintiff have and recover of the defendants its costs and disbursements herein.”

From the judgment entered in accordance therewith defendants Lull and Willard have appealed.

Bird, Okoneski & Puchner, of Wausau, for appellants.

Bundy, Beach & Holland, of Eau Claire, for respondent.

ESCHWEILER, J. (after stating the facts as above).

This sketch helps to illustrate the situation:

IMAGE

Defendants' assertion of title to the 173 acres found to lie between the meandered lines in the field notes and reproduced in the plat of 1856 and the river as actually existing is based upon the language in the warranty deed to it in 1905 by the then owner of the property, the land company, and reading as follows:

“Lot 1 in section 21 being all the land in said section north of the Flambeau river and containing 65.48 acres more or less according to the United States government survey.”

Upon this language and the covenant of warranty in said deed defendants assert that all the land in section 21 which is lying north of the Flambeau river as it actually exists is theirs, and that neither the land company nor any subsequent grantee from it can be heard to assert to the contrary. Defendants further claim that if such conveyance should not be held to so give them title to all of such tract they at least take title to the entire N. E. 1/4.

[1] The first of these positions so taken is based upon the general and well-recognized rule that the courses and distances of meander lines in the government survey, subsequently incorporated in the plat made from such field notes, are not controlling as to the boundaries of land conveyed with express reference to a body of water or other natural boundary along which such meander lines are run; that the meander lines are construed to be primarily for the purpose of measuring the quantity of land for which the United States government is to receive the purchase price, rather than as exact surface limitations; and that therefore such meander lines yield to...