Musser-Sauntry Land, Logging & Manuf'g Co. v. Tozer

Canty, J. This is an action brought by the plaintiff against the defendant for the conversion of logs cut on land claimed to be owned by plaintiff, and which were owned by it unless its title had been divested by reason of a tax deed under which defendant claims. The effect of this tax deed is the principal question in the case. Since and before the date of the execution of such deed there has been in force in that state a statute of limitation in favor of such tax deeds, which reads as follows: Wis. R. S. “§ 1188. No action shall be maintained by the former owner or any person claiming under him, to recover the possession of any land or interest therein which shall have been conveyed by deed for the non-payment of taxes or to avoid such deed against any person claiming under such deed, unless such action shall be brought within three years next after the recording of such deed. Whenever any such action shall be commenced upon any tax deed heretofore or hereafter issued, after the expiration of three years from the date of the recording of such deed, * * * as aforesaid, such deed, if executed substantially in the form prescribed by law for 'the execution of tax deeds shall be conclusive evidence of the existence and legality of all proceedings, from and including the assessment of the property for taxation, up to and including the execution ■of such deed.” There has also at the same time been in force against the operation of such tax deeds a .statute of limitations, which reads as follows: Wis. R. S. “§ 1187. No aciion shall be maintained by the grantee or any one claiming under him to recover the possession of .any land or any interest therein, which shall have been conveyed by deed for the non-payment of taxes, unless such action shall be brought within three years next after the date of the execution of such deed; or, if such land demanded shall be, when so conveyed, vacant and unoccupied, and so remain, unless such action be brought within three years next after the date of the recording of such deed, or unless such grantee or those claiming under him shall have been in actual, not constructive possession of the land so demanded for [448] three successive years during the five years next after the recording of such deed; provided, however, that if the former owner takes possession of any such land at any time within three months of the expiration of three years from the date of the execution of such deed, then and in such case the grantee in such tax deed, or those claiming under him, may bring and maintain an action to recover possession of said land at any time within three months next, after the expiration of said three years.” The Supreme Court of that state holds that when land of which a tax deed has been made is vacant and unoccupied, the holder of such tax deed has the constructive possession, in favor of which, as well as of his actual possession, the limitation provided in said section 1188 will run; but that such constructive possession may be interrupted by the former owner entering and taking possession, in favor of which possession the limitation provided in section 1187 will then run. Thus it will be seen that stopping the running of one limitation starts the running of the other. Said tax deed is dated May 20, 1889, and it is recited in it that the land in question was sold to Burnett county on the ISth day of May, 1886; that it had not been redeemed, and was forfeited; that one E. F. Drake had purchased it, and it purported to convey the land to him. This deed was recorded the same day, and no question is made but that it is in the form prescribed by the laws of that state. One Clendenning, under authority from Drake, cut the logs in the winter of 1890-91, and they afterwards passed from him into the possession of defendant, who sold them. During all of this time the land was vacant and unoccupied, except such occupation as Clendenning had while cutting and hauling the logs, and the limitation provided by section 1188 was running in favor of the tax deed; and, whether this deed was originally void or not, it would, under the decisions of that court, have ripened into a perfect title on the 20th of May, 1892. But on the 19th of April, 1892, the plaintiff caused three of its employes to go upon the land to protect the land from trespass, and to sleep on each forty, and travel over the seven forties once a day. The three men did as ordered, pitched their tent on one forty, and [449] camped, slept, cooked, and prepared their food there a week, camped on the next forty two or three days, on the next one five days, on the next two days, on the next three days, on the next one day, and, after one more removal, camped on one forty until the 9th of June, 1892. This was done for the purpose of asserting title. Plaintiff’s witnesses testified, as to the character of the occupancy: “We did not go there for the purpose of improving the lands, nor fencing them, nor putting any buildings on the lands at all; simply went to obey orders; simply went on there to stay a while, and then came off.” The court below held that this was sufficient to constitute adverse possession under these statutes and the decisions of the Supreme Court of Wisconsin. We are not of that opinion. We have examined those decisions, and do not think they warrant that conclusion. It is true that there are such decisions holding that logging all winter for a couple of winters on the land, and cutting off all or most of the available timber on it, may constitute such possession. But in the late case of St. Croix Land and Lumber Co. v. Ritchie, 78 Wis. 492, (47 N. W. 657,) they also hold that cutting some trees on each forty for the purpose of erecting a dam on other land, or the mowing an acre or two of marsh land, or the foraging of cattle running at large on it, would not be sufficient to interrupt the running of the limitation, and bar the tax-title claim. ' That, if the former owner “actually and exclusively occupies the land in hostility to the defendant’s title, and subjects the same to their will and dominion by actual and appropriate use according to their locality, quality, and character, the evidence of such occupancy being tangible to a person going upon and examining the lands, such occupancy and use would constitute adverse possession.” To what actual or appropriate use was this land subjected, or what tangible evidence thereof was there to a person going upon the land? Would the sight of a tent and á camp fire convey to his mind any idea that it was anything but a hunting or fishing party? But if even this occupancy was intended to be continued unto and followed up by something more permanent, it might be different; but it was not. There never was any intention of doing anything more towards appropriating the land to any proper use than what was done. It [450] was intended that the possession should be as temporary, casual, and fugitive as it really was. A mere entry is not sufficient to interrupt the running of this statute of limitation. It sufficiently appears that the occupancy ivas temporary, casual, and in bad faith, and for these reasons we are of the opinion that it did not interrupt the running of the statute of limitations in favor of the tax deed; that the same became conclusive under the Wisconsin decisions before this action was commenced, and cannot now be impeached any more in this action than in a direct action to try the title to the land. For these reasons the order denying defendant’s motion for a new trial is reversed, and the appeal of plaintiff is dismissed. (Opinion published 57 N. W. Rep. 1073.) Application for reargument denied April C, 1894.