Wisconsin Central Company v. Price County

All the lands embraced by section 3 of the act of 1864 were granted in 1866, by the state of Wisconsin, to the Portage & Lake Superior Railroad Company, and to the Winnebago & Superior Railroad Company, respectively, companies which had been incorporated under the laws of that state. & L. Laws Wis. 1866, c. 314, § 8; chapter 362, § 9. In 1869 the consolidation of these two companies, under the name of the 'Portage, Winnebago & Superior Railroad Company,' was authorized by the state, and in 1871 the name of the consolidated company was changed to the 'Wisconsin Central Railroad Company,' the plaintiff in this suit. The Portage, Winnebago & Superior Railroad Company duly filed the location of its road from Stevens' Point to Bayfield on October 7, 1869; and in December following the commissioner of the general land-office withdrew from sale, preemption, and homestead entry the odd-numbered sections of land within the 20-miles limit along the line of the location. The road was built in sections of 20 miles each. Section 6 and portions of sections 5 and 7 fell within Price county. Section 5 was completed in February, 1874, section 6 in December, 1876, and section 7 in June, 1877. The whole number of acresin the odd-numbered sections along the line of the railroad within the 10-mile limits, was 1,377,383.93. Of this number, 789,622 acres had been disposed of by the United States before the act of May 5, 1864, was passed, and 161,695.53 were disposed of after its passage, and before the line of the road was located in October, 1869.

The plaintiff, the Wisconsin Central Railroad Company, received from the United States, prior to November 16, 1877, patents for the 240,363.54 acres within the place limits, that is, within 10 miles on either side of the line of the road as located; and patents for 203,459.62 acres within the indemnity limits, that is, between 10 and 20 miles of the line of the road. One January 9, 1878, the company received from the United States a patent for 162,622.89 acres, and on August 10, 1878, a patent for 29,398.51 acres; both of these patents covering land within the place limits. No other patents were issued by the United States to the company previous to the commencement of this suit, and the patents issued did not include the land upon which the taxes were assessed, to restrain the collection of which the suit is brought. Of the lands in question, 11 parcels, of 40 acres each, lay within the place limits. The remainder of the lands lay within the indemnity limits. A list of selections of lands within the place limits claimed by the company on a count of the sixth section of the road from Stevens' Point to Bayfield was filed in the local land-office on December 5, 1876. They included, among other lands, the 11 40's mentioned. A list of selections of land within the indemnity limits claimed by the company, on account of the same section of railway, was filed in that office on the 9th and 15th of December, 1876. They included the remainder of the lands referred to in the complaint. Repeated demands were made by the railroad company, from the time these lists were filed until after the trial of this cause, for patents covering the lands referred to, but no patents were granted for any of them. A full statement of the efforts to secure patents is given in the testimony of the vice-president and general legal manager of the company.

It appears from this statement, the accuracy of which is not questioned in any particular, that up to the time of the decision of this court in Leavenworth, etc., R. Co. v. U.S., 92 U.S. 733, which was rendered in April, 1876, it had been the practice of the land department to allow grantees by the United States of land to aid in the construction of railroads, whose grants were similar in their terms to the one under consideration here, to take land from the indemnity limits in lieu of lands sold or otherwise disposed of by the United States prior to the passage of the act, and of lands to which a pre-emption or homestead right had previously attached; but that this practice was subsequently changed in consequence of the language of the court in that case, and its supposed decision that indemnity could be allowed only for such lands as were sold or reserved or otherwise disposed of, or to which the right of pre-emption or homestead had attached, between the passage of the act and the time the line or route of the road was definitely fixed.

The commissioner of the general land-office, in a letter addressed to the secretary of the interior under date of November 16, 1877, contained in the record, stated that this practice had existed since the inauguration of the railroad land-grant system, but that it would appear from the decision in question that the practice was erroneous; that indemnity could only be allowed for lands sold or disposed of after the passage of the granting act; and, applying that rule to the grant under consideration, the company had received patents for 41,820.09 acres in excess of the indemnity authorized. The secretary of the interior, in answer to this letter, under date of December 26, 1877, referred to the decision of the supreme court, ane held, in pursuance of it, that lands sold or disposed of by the United States prior to the passage of the act granting lands to the state of Wisconsin were excepted from the operation of the grant, and that indemnity could not be obtained for the lands thus lost; citing from the opinion of the court to show that such was its decision. The secretary concluded by stating that, in accordance with that rule, the company had already received 41,820.09 acres in excess of what it was entitled to, and instructed the commissioner to call upon the company to relinquish its claim to that quantity of land, in order that it might be restored to the public domain. Repeated efforts were afterwards made by the agents of the company to induce the secretary of the interior to change his views upon that point, but without success. Accordingly no selections of indemnity lands for lands lost from the grant within the place limits along the line of the constructed road known as 'section 6' were ever approved by him, and no patents of the United States were issued for such lands, or for any lands within the place limits along that section, until after this suit was commenced. Having failed to secure any patent from the United States, the plaintiff made application in February, 1884, to the state of Wisconsin for a patent, and on the 25th of that month a patent by the state was issued to it, embracing the lands mentioned in the complaint. When application was thus made t the officials of the state, a careful examination was had by them of the selections, in order to determine whether any of the parcels were swamp lands.

There was no controversy concerning the facts of the case, and the trial court found substantially as follows: (1) That the lands described in the complaint were all wild, unoccupied, and unimproved, and situated in the town of Worcester, in the county of Price, and were a portion of the lands granted to the state by the third section of the act of congress of May 5, 1864, for the purpose of constructing what is now the plaintiff's railroad. (2) That 11 40's of the land described were situated within the 10-mile limits of said grant, and all the rest within the indemnity limits, and all in odd-numbered sections. (3) That all of said lands were assessed in that town in 1883, and put on the tax-roll, and the amount of tax carried out against each respective piece, but were not against to the plaintiff by name, or to any one else, or to 'unknown owners,' and that none of the real estate included in the assessment-roll for that year was assessed to the owners thereof; that a warrant was attached to said tax-roll, and the roll, with said warrant attached, placed in the hands of the town treasurer for collection; that the taxes were unpaid thereon, and the town treasurer returned the same to the county treasurer as delinquent. (4) That on the 25th of February, 1884, the plaintiff received a patent from the state for all said lands, and thereby acquired the absolute title in fee to the same; that until then the plaintiff could get no title to the lands, and had no right to sell or convey the same; that until they were segregated and identified, and the grant applied thereto, the grant was 'a float.' (5) That the plaintiff's right to the lands was in dispute between the state and the United States; that said lands and others were withheld from the state and the plaintiff by the secretary of the interior, and thereby the issue of patents therefor by the United States was delayed; that the plaintiff did not in any manner cause the delay, but, on the contrary, was diligent and persistent in its efforts to procure the patents; that the delay in their issue was caused entirely by the government of the United States and the general land-office, against the protest of both the plaintiff and the state, and in spite of continued and unintermitted efforts made by both to obtain their issue by the interior department. (6) That the lands described had at the time the taxes were levied and assessed thereon, in 1883, been selected as lands to which said land grant applied, but said selections had not been approved by the secretary of the interior, and had not been certified to the state, or in any manner identified as lands for which the plaintiff would eventually receive patents, but, on the contrary, the secretary of the interior refused to recognize the right of the state to the lands, or to approve the selections made.

As conclusions of law, the court found, in effect: (1) That it was not the intent and meaning of the act of congress that said lands should be subject to taxation until they had been earned by the plaintiff and patented by the United States; that while they had been in truth earned by the plaintiff before they were assessed for taxation, yet the plaintiff's right to the same, and to patents therefor, had been denied by the secretary of the interior; that the plaintiff could not exercise control over them until it should be determined whether it was entitled to receive patents for them as part of the lands granted. (2) That the lands were 'a float' as long as the plaintiff's right thereto was not admitted and recognized by the secretary of the interior, but denied and disputed by him, and patents therefor withheld by him against the will and request of the plaintiff, and hence during such time the lands were not subject to taxation by the state. (3) That said lands were not subject to taxation in 18 3, and that the taxes levied and assessed thereon for that year were illegal and void, for the reason that said lands were then exempt from taxation. (4) That said tax was a cloud upon the plaintiff's title to said lands, and it was therefore entitled to the relief prayed for in the complaint.

Upon these findings, judgment in favor of the plaintiff, perpetually restraining the defendants from collecting said taxes, was entered. The defendants appealed to the supreme court of the state, by which the judgment below was reversed, and the cause remanded to the circuit court, with directions to dismiss the complaint. To review this latter judgment, the cause is brought to this court on writ of error.

Edwin H. Abbot and Louis D. Brandies, for plaintiff in error.

Willis Hand, M. Barry, and J. C. Spooner, for defendants in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.