Tucker v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

PiNNey, J. 1. The effect of the' patent to the county judge and his déed of'conveyance to Asaph Whittlesey and Charles 0. Tucker, since deceased, was to vest the legal title of the premises in question in said Whittlesey and Tucker, as tenants in common. ’ The decree in the partition suit of Tucker v. Whittlesey, 74 Wis. 74, set off and vested the legal title to the entirety of the premises iii Lela M., Charles.C., and Jack Z. Tucker, heirs at law of said Charles C.' Tucker, — 581 — deceased, as tenants in common. Each of said heirs thus became the owner in fee of the undivided one-third of each of said lots. Lela M. Tucker-, in her action, relies upon her title to such undivided third, and an assignment from both of her cotenants of their claims and demands for damages for defendant’s taking and using a right of way across the lots she claims, described in her proceeding, and also by virtue of a deed of conveyance of one third of said premises to her from one of her cotenants; while Charles 0. Tucker and Jack Z. Tucker rely upon their respective titles to one undivided third of the premises which they each claim, and assignments from their respective tenants in common of their claims and demands for the taking and using by the defendant of a right of way for railroad purposes across the lots in question. The case of Frey v. D., S. S. & A. R. Co., ante, p. 309, under the circumstances stated, is conclusive in favor of the right of the plaintiffs in these several actions to recover damages for taking and using a right of way by the défendant. across the respective lots. 2. It is objected that the evidence is not sufficient to show that Beaser, Kilbourne, and Whittlesey were occupants or proprietors of the town-site of Ashland, and'proper beneficiaries of the legal title which passed from the United States to the county judge of Ashland county, as determined in Whittlesey v. Hopppenyan, 72 Wis. 140. In that case it was held that, in the absence of proof to the contrary, it must be presumed that the proceedings on the part of the trustee, the county judge, which resulted in a conveyance by him to Whittlesey and Tucker, were in accordance with the statute. The statute (ch. 95, Laws of 1856) provides that in such cases “the trustee or trustees shall have power, and he or they are hereby authorized and instructed, to convey to said occupants or proprietors, their assigns or legal representatives, a full and just title to each of their respect — 582 — ive interests in. such town-site, which, conveyance shall be binding in law, and shall be favorably construed in all courts and places in this state.” By the third section of the act it was provided that in case there should be conflicting claims to any lots or parts of lots, upon application for that purpose to the county judge by any claimant to any lot or lots, or parts of lots, surveyed and platted by him, he should, upon due notice, “ proceed to hear and determine the right and interest of the claimant in said lot or lots or parts of lots according to equity and justice, and shall award make, according to the respective interests of the parties; and the award of the said judge shall be final and conclusive.” The powers and duties of the county judge under this act are analogous to those exercised by the land department of the United States in granting a patent, and the execution of a deed by such judge is substantially an official determination, which he is authorized to make, that all the requirements preliminary to the execution of the deed have been complied with, and that the person to whom it has been issued is entitled to it. No one who is not a beneficiary of the trust, but a mere stranger to the title, as the defendant is here, can call in question the validity or regularity of such conveyance, or, by subsequent entry or intrusion upon the premises, put parties claiming under such conveyance to the proof whether all the steps prescribed by law have been taken, or whether the party to whom the deed was executed was the person rightly entitled thereto. These questions can only be litigated by some one interested in the trust, and by direct proceedings for that purpose. Taylor v. W. & St. P. R. Co. 45 Minn. 66; Murray v. Hobson, 10 Colo. 66; Ming v. Foote, 9 Mont. 201; Chever v. Horner, 11 Colo. 68; Cofield v. Mc-Clelland, 16 Wall. 331, 334; Smelting Co. v. Kemp, 104 U. S. 640; Moffat v. U. S. 112 U. S. 24. These and many other authorities that might be cited to the same effect are quite — 583 — sufficient to show that the deed from the county judge to Whittlesey and Tucker was not open to collateral attack by the defendant. 3. The objection to the competency of the decree in the suit of Tucker v. Whittlesey, in the circuit court for Ashland county, by which the lots in question were set off and decreed to the plaintiffs, on the ground that the defendant was not a party to it, and therefore not bound by it, is untenable. The decree was in a suit for partition between the heirs of Whittlesey and those claiming under him, and the plaintiffs, and was as effective to pass the title to the entirety of the lots in question to them as if the defendants in that case, having Whittlesey’s title, had made a sufficient deed of the lots to the plaintiffs, the heirs at law of Charles C. Tucker, deceásed. The defendant was an utter stranger to the title involved in that suit, and there is no reason why it should have been made a party to the action. The decree was competent evidence to show that the title vested in Whittlesey and Charles C. Tucker by the deed from the county judge to the lots in question had become vested in the Tucker heirs, the plaintiffs in that action. 4. It was insisted on behalf of the defendant that the rights of the several plaintiffs to recover damages for taking and using the right of way across the lots in question had been barred by both the six and ten years statutes of limitation (R. S. secs. 4215, 4222); but we are of the opinion that this contention cannot be maintained. In Frey v. D., S. S. & A. R. Co., ante, p. 309, it laid down by Cassoday, C. J., that “ the right to have such damages assessed in such proceedings, and to enforce payment thereof, is a property right, which may remain in the person to whom it has accrued after he has parted with all title and right to the possession in every part of the land; ” and in that case this property right was held to be assignable and enforceable by — 584 — the assignee. It is clear, therefore, that such assignee is a person “ interested in the premises,” within secs. 1846,1852,. R. S., to the extent, at least, of such right. In the present cases the entry of the defendant on these lots was in June, 1883, and it has held and used the right of way ever since,, presumptively by the tacit consent of the owners of the lots. Hence they had lost all remedies at law or in equity in respect to such taking and use, and became restricted to proceedings under the statute to have their compensation assessed; and when assessed, if not duly paid, they might, no' doubt, obtain an injunction to restrain and prevent the further use of such right of way until payment shall be made': What statute is applicable to bar or preclude the enforcement of this right ? Manifestly, not the six-years statute, but those statutes applicable to real actions and rights in and to real property. It was the duty of the defendant' to have proceeded to perfect its rights by proper proceedings under the statute; but, failing to do this, the party “interested in such lands may institute and conduct the proceedings to a conclusion.” R. S. sec. 1852. The defendant entered upon the lots in question about ten years' and two months before these proceeding's were instituted, but it did not enter “under claim of title, exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, or upon the judgment of some competent court ” (R. S. sec. 4211); and therefore the statute bar of ten years is not applicable, and the statutory remedy of the plaintiffs, under R. S. sec. 1852, was not barred. 5. As the defendant did not show that it was the assignee-of the Ashland Railway Company, or entitled to any rights it had acquired in the premises, the court properly refused to receive in evidence the receipt for moneys paid by the Ashland Railway Company under its' condemnation proceedings, or to reduce either of the verdicts on account of such payments. — 585 — Eesides, the strip of land in question here is in no particular identical with any part of the premises described in the former proceeding, nor were these plaintiffs parties thereto. There is no other question of sufficient significance to require discussion, and it follows that the judgments in these cases were rightly given. By the Oourt. — The several judgments appealed from are affirmed.