Coleman v. Eldred

Cole, J. Do the facts found in the special verdict show any such actual occupation or possession by the defendant of the four forty-acre tracts covered by the tax deed (namely: the S. ~W. J of the S. E. i, and the N. W. \ of the S. E. J, of section 24, and the S. W. J- of the N. E. £, and the N. W. \ of the N. E. J, of section 25), during the three years next after the recording of the tax deed, as would interrupt the running of the statute in favor of the grantee in that deed ? This is the only question in the case which need be considered. In Lewis v. Disher, 32 Wis., 504, it is decided that, in order that the grantee of a tax deed may acquire title to unoccupied land by lapse of time, under the statute, it must appear that the land remained and was continuously unoccupied for the whole period during which the statute was running; that any intervention or actual occupancy, during that time, by the former owner or by any person for him, would disengage the bar of the statute, and relieve such former owner from the conclusive effect which would otherwise be given to the tax deed. Within the doctrine of this decision, can it be said that the constructive possession which followed [212] the tax deed was interrupted by any act of the defendant in this case? We think not. It appears that the defendant owned these tracts prior to the issuing and recording of. the tax deed, and also other pine lands in the same locality. The evidence shows, and the fact is admitted, that Page logged for him in the winter of 1872-3, and Simpson in the winter of 1873-4. The defendant furnished each with minutes of the whole body of lands which he owned in sections 22, 23, 24 and 25, without reference to subdivisions, as the lands on which they were to log, and gave them directions to go upon, occupy and use these lands as jobbers usually do. But neither Page nor Simpson entered upon, used or occupied in the usual and customary way of owners of pine lands, either one of the forty-acre tracts above mentioned, until after the three years’ limitation in favor of the tax deed had expired. And if the running of the statute as to these tracts was interrupted, it was because Page and Simpson occupied, for the purpose of logging, other lands in the vicinity belonging to the defendant, or because he had authorized or directed them to enter and log upon the lands in question. But we are unable to see upon what principle it can be claimed that logging upon other subdivisions in the same section, or even directions given by defendant to loggers to enter and log upon these lands, could or did have the effect to interrupt the constructive possession under the tax deed. Certain it is that there was no actual occupancy of the lands by the defendant, nor any act done by him which in any way interfered with the possession. It is true, the jury found that Simpson and Page, or one of them, did use and occupy the whole body of lands claimed by the defendant in sections 24 and 25, for logging purposes, in the seasons of 1872-3-4, without reference to subdivisions; but this finding is qualified or explained by the express finding that neither Page nor Simpson did actually enter upon these lands for any purpose at these periods. Logging upon other subdivisions in the same section could not operate as con [213] structive adverse possession beyond the limits of such subdivision. Wilson v. Henry, 35 Wis., 241; Pepper v. O'Dowd, 39 id., 538. It follows from these views, that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed. RyaN, 0. J., and LyoN, J., took no part.