COLEMAN. ". PESHTIGO LUMBER CO.
817
them. This suiMs in the interest of public right and justice, to correct a.publicwrong and upon a department of the govern. ment. Let a decree be entered for complainant as prayed for in the bill,witb costs.
COLEMAN 'D. PESHTIGO LUMBER Co.
(Oircuit Cowrt, E.D. Wiaconain. January, 1887.)
1.
PU»LIOLANDs-TAX SA.LE+PATEN'r-EJECTMENT-WILD LAlms.
A.. entered on wild and unoccupied lands, but had obtained no patent for them up to the time they were sold for taxes. Subsequently to the sale he obtained a patent. Held, the patent related back to and confirmed the entry, so that the purchaser at the tax sale acquired the legal title, and maintain ejectment against A., or one to· whom he had sold after the patent. '
2.
ESTOPPEt.-lNACTION DOES NOT CONSTITUTE-SUFFERING ANOTRER TO 'PAY TAXES.
The purchaser at the tax sale suffered the purchaser under the patent to pay all the subsequently maturing taxes. Held, this inaction or failure on the part of the former 'actively to assert title is not sufficient to constitute an estoppel against his afterwards setting up his title against the other purchaser. , TQcreate an estoppel it ·must appear that one party has been influenced to pursue a certain course of action by the conduct of another, which in sticha case means more than passive inaction. The ,supreme court of Wisconsin, in Oconto (Jo. v. JerrarrJ" 46 Wis. 3,17, in construing the statute which requires a general index to be kept, in the offices ofTegisters of deeds, of all tax deeds, having held that the entry, "See in the column of the ,general index designed for a description of the property conveyed, is sufficient to put all parties interested upon inquiry, the ruling must be the !!ame in the case at bar, although the additional fact appears. ill. this case that,besides the particular deed in question being so indexeli, it was the practice of the regiater. in a majority of caaea, to 80 index tax deeds. That fact is not sufficient to distingui,.h the case from the Jerrard Oaae.
8.
REOORDS-GENERAL INDEX-"SEE REOORD"-TAX DEED.
4.
TAXATION-OMITTED TAXES-DOUBLE SALE.
of the landsin contest for taxation in 1868 was omitted, but in 1869, the levy and assessment was made, not only for that year, but for the omitted taxes of 1868. Held, there should have been, under the Wisconsin statutes, but one sale of each parcel for the aggregate of the two years' taxes on that parcel, and the issue of one certificate of sale on each parcel. The making of two sales. and issuing of two certificates, was a violation of law, and rendered the sale nugatory, and the tax deed void; and, as the assessments were concurrent and were returned delinquent at the same time, they cannot be separated, by the court striking out from the deed those parts which show a sale for 1868, and allowing to be valid those which show a sale for 1869. Laws Wis. 1859, c. 22, 32, provides that no action shall be maintained by the grantee in a tax deen to recover possession of the land conveyed unless such action be brought in three/ears next after the date of such deed, or unless th'egranteeshall have pai taxes for five years; or have been in actual or continual possession of the land for three years previous to the expiration of the five years next after the date of the deed. The supreme court of Wis consin having construed this section to mean that, after the lapse of three" years from the date of recording a tax deed, there being no· actual adverse
SAME-RECOVERY OF POSSESSION-LIMITATIONS-GOOD TITLE.
.' possession part of that 'time, the tax deed' draws aftellit the constrQQtive possession" and ripens, fn,to a valid and unimpeachable title without regard, to whether the grantee has been in actual p088ession or has paid taxes on the land for five years, that construction of a state statute by a state court is. bJJiding on the fede,rai courts, '
At Law. William H. Webster, for plaintiff'. George G. Greene, for defendant. DYER, J., (orally.) 'This is an action ofejectment recover the possession of certain lands in Marinette in this state. The plaintiff claims title under a tax deed issued to him September 26, 1873, based on tax sales madain 1870 for the taxes of 1869; and omitted taxes of 1868. ,The defendant is the grl1n,te,eof'the original oWner, who acquired his title by patent from the '1'he patent was issued May 2, 1870J and the defendant's conveyance is dated April 15, 1871. The lands were wild and unoccupied until 1885, and were entered by the partywhoreceivEld the patent, prior to 1868. The defendant, in ignorance of the plaintiff's tax deed, paid all taxes assessed on the lands from 1870 to 1885, both years inclusive., The court has carefully considered case, and has come to the following the several questions conclusions, which will be briefly stated: 1. The court is of the opinion that the lands in question were taxable during the period intervening the date of their entry and the issue of the patent. I regard this qtiestionas so fully settled by authority as not to require discussion.. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 "Wall. 210; Ross v.Qoard of Sup'rs, 12 Wis. 26; West WlB. R. Co. v. Trempealeau 00., 35 Wis. 258; and Wisconsin Cent. R. Co. v. Price Co., 64 Wis. 594, 26 N. W. Rep. 93. It is contended by the defendant that after the entry, and prior to the issue of the patent, the purchaser had but an equitable title; that, therefore, only the equitable title was subject to taxation; and that the sale for the non-payment of such a tax,and a tax deed founded on such a sale, would convey only that title, which is insufficient as the basis of an action of ejectment to recover possession of the land. But this view ignores the doctrine of title by relation. And the decisions are to the effect that the patent confirms the entry, and relates back to the time of sold for taxes assessed intervening the entry; so that, if the lands the date of the entry and the issue of the patent, the purchaser at such sale takes a legal title as against the former owner. 2. I am also of the opinion that the plaintiff is not estopped from maintaining thisllction, or asserting title under his tax deed, by reason of having suffered the defendant to pay all subsequent taxes levied on the land. The basis of a legal estoppel is wanting. The plaintiff has 'done nothing except to remain passive. His failure to actively assert title to the land cannot be considered conduct on his part inducing the defendant to pay the ta.xes. And, to create an estoppel, it must appear that one party has been influenced or induced to pursue a certain course
fu
I
COLEMAN .". PESHTIGO LUMBER CO.
319
of action by the conduct of another, which means, ina case like this,' something more than passive inaction. 3. Upon the authority of Oconto 00. v. Jerrard, 46 Wis. 317, I must hold that the tax deed in this case was sufficiently recorded to give con- . structive notice of the tax title held by the plaintiff. The opinion in that case seems to me s(i)mewhat inconsistent with other rulings of the same court upon the subject; and, as an original question, I should be disposed to hold that the entry of the words "See record," in the column of the general index designed for a description of the property conveyed, is insufficient to create or establish constructive notice, even though the conveyance Were spread at large upon the proper volume of records in the register's office. But the supreme court of the state, in passing upon and construing the statute which requires a general index to be kept in: the offices ofregisters of deeds, has held in the Jerrard(Jase, not without protest against the delinquency of the register, that the entry, "See record," is sufficient for the purpose of putting all parties interested upon inquiry., And I do not see how the binding effect of this rule is to be escaped ,from in the present case. It is true that in .the case at bar it appears that the entry of the tax deed in question upon the general index, in the form in which it was entered, so far as a description of the premises was concerned, was not a solitary instanoe of such a manner of indexing, as in the Jerrard Case. Indeed, it appears here that it was the habit of the register, in perhaps a majority of cases where tax deeds were deposited with him for record, to insert in the column intended for description of the lands conveyed, in the general index, the words, "See record j" and it is by counsel for the defendant that this distinguishes the present case from the Jerrard Que. But if, according to the opinion 0'£ the supreme court, such form of indexing is good and sufficientin the case of one deed thus indexM, why is it not good and sufficient as to all deeds similarly indexed? All that can be said is that the negligence of the register is more flagrant and gross in the one case than the other. But this consideration does not reach to the legal proposition involved, which is whether, in any case, such a form of indexing is lilufficient; and, as the supreme court of the state has held with reference to the conveyance before them in the Jerrard Case, that such a form of indexing was sufficient when taken in connection with the fuet that ,the conveyance had been recorded at large in the proper volU.m.e of relJords, I am unable tq see why it does not follow, as a necessary result from that ruling, that the same form of indexing of the tax deed. involved in this case is sufficient, although it appears that in 'DUll)erOUS other instances the register has been guilty of similar neglect pi duty. 4. As to S9 much of the lands described in the complaint as consist of ,the N.E. t ofthe S. W. I, theN.W. t of the S. \V. I and the S. W.l of the S.W. t of section No. 13, township 35 N., of range 17, I hold the tax deed in suit void, for the reason that itappears on the face thereof thatfor the taxes of.two years, namely, 1868 and 1869, both due at the time of the sale, the sa,id lands were twice sold and two· certificates of sale issued.
FEDERAL REPORTER.
The assessment ofthese lands for taxation in 1868, and the levy of taxes thereon for that year, were omitted. By authority oflawan assessment and levy were madain 1869; ,not only for the btxesof that year, but fOI the omitted taxes of 1868. 1 regard it clear, in the light of the statutes of this state bearing bnthe subject and applicable to the transaction, in connection with the authorities that have heen submitted, that there should have been but bne sale of each of these parcels for the aggregate of the two years' taxes on that parcel, and the issue of Qne certificate of sale on each paroel. The ;making of two sales and the issue of two certifioates were 'violations of law, and such violations are patent on the face of the deed. In other words, it appears from the deed itself that the sales made olthe .parcels named, were unauthorized, because not oonforming to the requirements of the statute. The learned counsel for th&plaintiff has, however, made a very ingenious argument to escape from this conclusion, which is based upon the theory that this double sale did not invalidate the sale for the taxes of 1869,: and that, while the court may be constrained to hold the sale for the omitted taxes of 1868, assessed in 1869, invalid, it may still hold the sale for the taxes of 1869, good, and as suffioiently supporting the tax deed asa muniment of title. But I regard this argument fallacious, be<?Ruse itreally rests upon the assumption that the non-payment of the omitted taxes of 1868 constituted a prior lien or delinquency to the taxes of 1869. There' could have been no delinquency for the omit' ted taxes of 1868 until they were assessed and returned delinquent in 1869. The two" sUms were assessed; and returned delinquent concurrently, and therefore became payable at the same time. The liens for the taxes of both years became such simultaneously. And so the rule that a separate sale for the last delinquency, if authorized, would extinguish a former aelinquency, does not apply. Furthermore, it is not a sale merely for one yeat's taxes that C1;lts oft' liens for prior taxes. That result is effected by the sale, and the conveyance which follows the sale. Herein I regard the argument of counsel in support of his views upon this question 'as unsound. The statutory power to sell once for the aggregate of two ,years' taxes was not well exercised. And, as the delinquencies and liens were concurrent, the court cannot any more pick out the taxes of· 1869, and say that the sale for those taxes was valid, and the sale for the taxes of 1868 was invalid, than it can say that the sale for the taxes of 1868 was valid; and the sale for the taxes of 1869 was invalid. I do not care to elaborate upon the proposition here involved. The plaintiff does not appear to have a shadow of equity to support his title. Necessarily he must stand upon a strictly legal title; and when it appears, as it does here, on the face of his deed, that the officer who made these sales was guilty of a radical departure from the authority conferred upon him by the statute, I am. clearly of the opinion that, as to the parcels of land specified, the illegality so taints the conveyance as to render it nugatory as a basis or means for setting the stat' ute of limitations in operation, and that, in view of what has been suggested, the court cannot strike out from the deed, for the purpose of sav-
COLEMAN t1. PESHTIGO LUMBER CO.
321
ing it, those parts which show a sale for the omitted tax of 1868 as plusage. The plaintiff is therefore not entitled to recover the possession of the parcels of land which were thus doubly sold, and which have been particulatly specified. 5. ThisJeaves for, consideration the question whether the plaintiff is entitled to reCOiVer the possession of tho S. E. ! of the S. W. ! of said section 18,: which was not, as the other parcels were, twice sold. The tax deed shows a single sale of that, parcel, and nothitlgappears on the face of the deed 'which affects the legality of tha,tsale. As to this parcel, the plaintiff's right depen!la upon the view which the court of the meaning of section 32 of chapter 22 of the Laws of Wisconsin for 1859, which is as follows: "No action shall be maintained by the grantee named in any deed of conveyance executed by the clerk of any county board of supervisors on the sale of illnds for the non-payment of taxes as prOVided in, this act, or any'other persim under such grantee, to recover, the possession of the land described therein, or any part thereof, or interest therein, unless such action shall be brOl:tght within three years next after the date of the recording of such deed, or unless such grantee, or those claiming under him, shall have paid the taxes assessed on such land for' five years next after the date of such deed, or unless such grantee, or those claiming under him, shall have been in the actual an,d contil).ual possession of .said lands, claiming title under such deeds, tor three years to the ,eJl;piration of five years next after the date of slich deed; in,the twocases last mentioned such action maybe broughtwithin the time limitl!ll. by law for the bringing of actions for the recovery of real e$tate after the date of such deed." . If the of that section,in connection with section 5, c. 138, Laws 1861, contended for by plaintiff's counsel, is correct, then, as to the S. E. t of the S. W.r, the plaintiff's action' is not barred by the three years' limitation named in section 32, and, pro tanto, he is entitled to. recover. . As an original question I should be strongly disposed to hold that the three clauses in question in section 32 are alternative limitations; that is, that it should appear either that this action was brought within three years next after the date of the recording of the tax deeQ, or that the grantee therein paid the taxes assessed on the lands for five years next after the date of the deed, or that he has been in the actual and continual possession of the lands, claiming title under the deed, for three years previous to·,the expiration of five years next after the date of the deed. This conclusion seems best to accord with a natural construction of the statute; and the argument of counsel (or the defendant, in support of that view, is very strcing, if not unanswerable. But it seems to me, after careful reflection, that the obiter views expressed by Chief Justice DIXON in Lawrence v. Kenney, 32 Wis. 281, to the effect that the last two clauses are exceptions ingrafted upon the limitation contained in the first clause, logically and necessarily result from the doctrine established by the supreme court in that case and in Gunnison v. Hoehne, 18 Wis. 268, and other subsequent cases, thc¥ constructive p088easion of vacant and unoccwpied land follows a tax deed, and that the grantee in such deed has such posv.30F.no.5-21
sElssion. lriGunnilJon v.HoeJine, supra, the courfheld that after the lll.pseofthreeyears from the, date; of the recording of a tax deed, there being no actual adverse possession during anypart'ofthat time, the tax deed drew after it the possession, and ripened into a valid and unimpeachable title. 'This in Lawre:ncev.·Kenney, supra,. and lam f<'lrced to the concluSIon.that the supreme <:purtof the state in subsequent:debisions meantto'aftirm the views individually expressed by· DIXON, O.J., in Lalwrencll''V'. ,Kenne'Jj. . . InAU8tin v. Holt, 32 Wis. 418,: one of the pdints made by counsel aMainst,the'validityof the tax deed in that case was, that it was barred b:r the 'statutory limitatlonbeeause the had neither taken possession nor paid the taxes for £i'\fesuccessive years after the date of the deed..)Ehe reply ofthe cqurt in its opinion. was that "the several points of counsel made and which:proceed upon the swppomtion that a. 'te..' corded tax deed'tJalidon its.jacedoe8,tOOt drawajterit constructive po88e8Bion of unoccupiedldru!,8, determiried by the recent decision in TAUS court in effe;ctdeclared lve posse$SlOn for three years m,ade a good tItle, although holder had,atthat .time not taken actual possession, nor paid the taxis on the land. Again, in'Warren v. Putnam, 63 Wis. 414, 24 N. W. Rep. 58, the: court reaffi,rrned the proposition "that. when the taxdood is in due form, and recor4ed,in the proper office, and the lands d,escribed therein, main vaCant and unoccupied for three years or mqre after the recording. thereof, the tax-title claimant is deemed to be in the constructive possession, and the:statute rUl1sinhiSfa:vorj and the original owner is barred frw/' aftackingit:8''ValiditYi'' oiting'Austin v.Holt, supra, and Lawrence v. Kenney, Would it have 'been thus declared that the original owner is bartiedjrom attacking the validity oj the tax deed after three.years' const'f'tlCtive. adver8e P088eBmon by the tax-title claimant,. if it had not been the view of 'the 'court' that actual possession for some period by such claimant, or' payment of taxes for :five years by him, were 110t essential elements iIiereatingi and· establishing the bar of limitation? In the samacMethe court further said: , '''The bar'of the statute is held to. run in favor of the tax claimant, in the case last stated,iupon the presumption of· fact that the recorded tax deed creates a constl'Uctiveaijverse possestlion in favor of the tax claimant, 'which, if continl,ledfor tl:\ll;three years, is ,as effectual to bar the:original owner as an actual a.dverse the S(J/1M l8fl,U,th of. time." , , I c.annot understand the 'scope of this language. unless it bears the' same meaning,as the Janguageof Chief Justice D'IXON in Lawrencev. Kenney, he says tha.t....;. ,",Aftev-the lapse of threeyeins, and after the titleo£ the holder had become I1erfect and, he, sue,the same as any other owner; as him. He then sues upou,his; tf..tl,e and, if)he former owner intrudes or dispossesses hIm, it is nlI more Wan If tM same acts were done by a person who had always been' a stranger to the title, and his ac.tion against him is the same ail' agai.pst ally other disseizor 01' trespasser."
'.a. ;
;
,t.
;'
.
',"
.1
!'uMBER CO.
823
The real meaning of all that has been said directly upon the subject, by v; Iroehne, l!UPTa, isthat, where lands are vacant and unoccupied, the grantee in a duly-recorded tax deed has constructive possessiort;<and; if such possession continues uninterruptedly for the period of three from the date of the, recording of th? tax deed, the 'holder ofsuch <leed then has a perfect title, unassailable under the statute, and the original owner stands like any other stranger in his relation to the land. This is the proposition held by the 'supreme courfwithoqt· regard to the' question whether, at any time after the recording of the deed, the grantee therein bas had actual possession or not, or whether he bas paid taxes the land or not. . Ahd I repeat that this aPPears to me to be logical result of holding, as the court did originally in Gunnison v. Hoehne, supra, that a tax deed of unoccupied lands, duly recorded, draws after it constructive ad.verse possession of the land. !tis true that in Wood v. Meyer, 86 Wis., 80S, Mr. Chief Justice RYAN, in the opinion of the court, observes that the land was unoccupied,.and that the respondent paid taxes on it for five years after the recording of his deed. And he says: "This made his title and right of possession absolute;" citing Gunnison v. Hoehne, 8upra, and Laummce v. KennPfY' supra. Bat his reference to the payment of taxes was evidently inadvertent, because Gunnison v. Hoehne and Lawrencev. Kenney, which he cites in support of his proposition, held that a fully ripened title followed three Year8' constructive possession under the taJe deed, without regard to any payment taxes on the land by the grantee in the tax deed. My conclusion, then, is that, in the several cases; that have beenreferred to, the supreme court of the state has intended to place upon section 82 of Chapter 22 of the Laws of 1859 the construction contended for by counsel for the plaintiff in this case., If this be so, then, in deference to the rule that, where the highest court ina state has interpreted a statute of the state, such interpretation is binding upon the federal court, it must be held, as to the S. E. 1- of the S. W. t of said section 13, that,by reason of three years' constructive adverse possession after the recording of the deed in suit by the plaintiff, the plaintiff became possessed of an unassailable legal title of said parcel of land. 6. I think it sufficiently appears on the face of the deed that the lands therein described weresoldiJi the whole for the sum therein mentioned, namely, $95.81, and that the point urged by counsel against the validity of the deed in that respect. is not tenable. In conclusion, and as a result of the views thus expressed, the judgment of the court will be that the plaintiff is entitled to recover the possession ofthe S. E. t of the S. W. 1- of section 13, township 35, range 17, and that he is not entitled to recover the other fractions of said S. W. t which have been before specified. This ruling is made upon the supposition that it is competent to hold the deed void as to some parcels of land therein described, and valid as to others,-a question not suggested on the argument, and which, therefore, I take it l counsel did not intend to raise about.
the
'OMAHA HORSE
Ry.
CO. tI. CABLE TRAMWAY CO. OF OMAHA.
(Circuit Oourt, D. Neb'l'aaka. March 5,1887.)
RAILROAD
In 1867. plaintiff company by its charter was given the exclusive horse·railway franchise of Omaha for 50 years. Defendant company, under a city ordinance, consented to by the peopl/! in 1884, authorizing it so to do, undertook to lay a cable tramway in Omaha on streets occupied by plaintiff, who sought to enjoin defendant, contendhig that at the date of its grant "horse railway" meant "street raHway," (cable Toads being then unknown,) and therefore its grant covered that form of railway communication. The court denied the injunction. Held;noerror,since all grants of franchises the public being strictly construed against the grantees, a fortiori those gIving monopolies should 1)e,so construed, and ,courts would not enlarge them by implication.
RAILWAY-CABLIll.
SAME....,.NEw :MODE OF TRANSPORTATION.
Helit, further. that even if the grant of the "horse-railroad" franchise meant 8 grant of the "street-railroad" franchise in the contemplation of the parties, yet a grant of a monopoly,contemplated was only of such forms of transpor· tation as then known and in' existence, not of such as might subsequently be deVised and used. 1 " , , " ,
SAME.
PI/lintiff's charter prohibited the rl,mning of locomotives or cars propelled by steam, or t4e cars of any other railway company, on its tracks. Held, that this had not the disjunctive force of ,!\'ranting to the plaintiff a monopoly of every form of street-railroad transportation except that of cars drawn by engines, but rather is an extra precaution on the part of the legislature to guard 'against the possibility of a railroad company running its cars over the tracks of the plaintiff. " Theisct of June 7,1867, giving to certain railroads the exclusive right of laying out and operating a railroad between their termini, extending into any town mimed as', terminus, and for a distance of five miles each side of such roads, and ,at all points between placesnamed as termini, repealed in 1871, even if it applied t08treet railroads, and was of such force that the repeal divested r.ight that had been' gave no rights to since Its lIne was operated 'WIthIn CIty limIts, and not between two CItIes or towns.
SAME:"-ToWNSA8' TERMINI.
G.
SAME--4NTEBFERENCE OF ROADs-DAMAGES.
Plaintiff ,was entitled to damages from defendant, not on account of the injury it sustained by reason of the, competition, but by reason of defendant's Interfering with the ingress and egress of plaintiff's passengers, and defendant's tracks crossing plaintiff's tracks. ' ,
This is a bill in equity. The facts are few and simple. The parties are agreed upon most of those that are material. The plaintiff was incorporated: by an act of the legislature of the late territory of Nebraska, with authority to build and operate 1I horse railway in the streets of the city of Omaha. The act was a special charter, and was approved February 18.1867. On the twenty-eighth of October, 1868, the city council of Omaha passed an ordinance granting the plaintiff the right to layout, construct, and operate railways in the streets of the city. The plaintiff entered upon the construction of its works in due tiuie, and has from year to year extended its lines, and it 1 The exclusive to light a city with gas for SO years is not legallr. .. impaired by a subsequent contract with another company to light the streets WIth electricity. Saginaw Gas-light Co. v. City of Saginaw, 28 Fed. Rep. 629.
