Scheuber v. Held , 47 Wis. 340 ( 1879 )

Oktost, J.

This action is brought to recover damages to the lands of the plaintiff by being overflowed by the erection and maintenance of the mill-dam of the defendants below the same, on Bark river, in Jefferson county. The answer, after a general denial, sets up and alleges, as to a portion of the lands, that they had been so submerged, used and enjoyed adversely to the plaintiff for more than twenty years, a part of. which time they were owned by the state as a part of the swampland grant; and as to the other lands, that they had been so submerged, used and enjoyed for more than twenty years, a part of which time they had been held under certificates of sale from the state.

Eor the purpose of this decision, the question as to the rights of the purchaser under these mere certificates of sale is immaterial, and will not be considered.

The main and important question raised by the demurrer is, whether twenty years’ prescription, by adverse possession and use of the lands for such purpose, when they belonged to the state for a portion of such time of prescription, is a defense to the action. In other words, is the state bound and barred, like any other party in such an action, by prescription as such?

Without discussing or following the history of the doctrine of prescription in England and in this country, as a general subject of inquiry, it maybe said in brief: First. Prescription at common law was strictly applicable only to incorporeal hereditaments, while, as to the land itself, the period of adverse possession and enjoyment was fixed by the statute of limitations. Second. Tire analogy between prescription and limitation was so close and perfect that the period of prescription has now come to depend upon .and follow that of limitation, very generally, in this country. Third. Prescription for the requisite period presupposed a deed having been given anterior to the time of prescription, and established a presumption of a grant as a presumptio juris et de jure; while limitation raised no such presumption, but operated merely as an extinguishment of the remedy. The former conferred and established a right and title, while the latter only barred a recovery. This was the former distinction, but which has long since been lost by the decisions in this and other states; and now adverse enjoyment for the period of limitation extinguishes not only the remedy but the title of the former owner, in lands as well as hereditaments. It is said by Chief Justice Dixox, in Knox v. Cleveland, 13 Wis., 246, “ that the right or title of a party to property which is adversely held and claimed by another, is barred and cut off by his neglect to prosecute within the period prescribed by the statute of limitations, and that such neglect operated to divest and transfer it to the adverse claimant;” and the same principle is recognized in Sprecher and another v. Wakeley, 11 Wis., 432; Hill v. Kricke, id., 442; Brown, v. Parker et al., 28 Wis., 21, and in many other cases in thi.s court. . Fourth. The analogies between prescription and limitation, in this state at least, not only1'establish the period of prescription and cause them to operate alike in conferring title, but make them so near alike in qualities, principle, purpose, effect and consequence, as to completely blend them together, and they are used interchangeably as being substantially the same. In Smith and others v. Russ and others, 17 Wis., 227, a case like the present, for flowing lands by means of a mill-dam, what is pleaded in the answer as prescription, as in this case, is called and treated as the statute of limitations in the opinion; and in Haag v. Delorme and another, 30 Wis., 591, a case of like flowage, Mr. Justice Lyon says, in his opinion: “ The nature, qualities and duration of the user and enjoyment of an easement, which will constitute a valid right thereto by prescription, are precisely the same as are required by the statute of limitations to enable the occupant of lands to defeat the title of the true owner;” and then holds that “ the occupancy of the lands for such purpose must be continued, uninterrupted and adverse, for the length of time prescribed by the statute.” This clearly implies that the statute of limitations applicable to real actions affecting the title of the lands, is equally applicable to an action like the present; and the language of the statute itself may well bear such an interpretation. The former statute in these respects is the same in the revision; and section 4206 provides that “ civil actions can only be commenced within the periods prescribed in this chapter,” deafly implying and comprehending all civil actions, including this action as well. Section 4208 provides that “ no defense or counterclaim founded upon the title to real property or to rents and services out of the same, shall be effectual,” etc. “ Eeal property ” is defined by tlie statute “ to include lands, tenements and hereditaments, and all rights thereto and interests therein.” This language is certainly broad enough to include the rights and interests in lands involved in this action, and, as we have seen, this court, in Haag v. Delorme, supra, and in other cases; has given such a construction to it.

The legislature, then, might very well adopt the same construction, and we think they have done so, in the legislation placing the state under the limitations of the statute as other parties, and by force of such construction making the state subject also to like prescription. It is provided in section 26, ch. 138, E. S. 1858: “The limitations prescribed in this chapter shall apply to actions brought in the name of the state, or for its benefit, in the same manner as to actions by private parties.”

Ey section 1, ch. 105, Laws of 1877, the above section is amended as follows: “ Provided, that this section shall not be so construed as to enable any person to obtain title to any lands, tenements or hereditaments belonging to or owned by the state, by adverse possession, prescription, or user.” This amendment most clearly implies that before and without it the state was, equally with other parties, subject both to the statute of limitations and prescription, and that such an amendment was necessary to exempt the state from the consequences of prescription; and to that extent the above sections 4206 and 4208 would also be amended. The amendment of this section 26, found in the present revision as part of section 4229, has equal significance of this same construction : “ But no person can obtain title to real property belonging to the state by adverse possession, prescription or user, unless such adverse possession, prescription or user shall have been continued uninterruptedly for more than-forty years.”

We conclude, then, that, under the effect of said section 26, ch. 138, E. S. 1858, the adverse possession and user of the lands in question, by means of the mill-dam, for more than twenty years, would be protected both by the statute of limitation and by prescription, and confer a title to the lands for such use upon the defendants, as against the state and other parties; and if such period had expired before the amendment of 1877, such title and right had become vested in the defendants.

This question involves only a construction of our own statutes, at most, and such a construction seems to have been established, in principle, by this court as well as by the legislature, and appeal’s to be alike reasonable and just. No one doubts that the state, at any time within the period of prescription or limitation, might bring an action like any other party; and there is no reason why the presumption of a grant to the adverse claimant, from a delay to bring such action for over twenty years, should not prevail against the state as against other parties.

What may be the effect of the present statute as to prescription, or the former statute of limitations relating to real actions, upon the rights of the state, is not here to decide, but it may be that both are extended to forty years.

For other authorities bearing upon the subject see 3 Wash-burn on Real Property, 51; Tyler v. Wilkinson, 4 Mason, 402; Lemon v. Hayden, 13 Wis., 159; Wyman v. The State, 13 Wis., 663; Booker and another v. Perkins, 14 Wis., 79. The court has been greatly aided in arriving at a proper decision of the important question in the case by the able and instructive arguments of the learned counsel on both sides.

By the Court. — The order sustaining the demurrer to the answer is reversed, and the cause remanded for further proceedings according to law.