1860. Jan. Term, proceeding was good, under the act of 1858, for the purpose of an injunction. DAVIS V. THE LA CROSSE & MISSISSIPPI et al. June 4. By the Court, COLE, J. If we correctly understand the RAILROAD CO. Complaint in this case, it had in view two objects; first, to obtain that legal and constitutional compensation which the respondent might be entitled to receive, by reason of the taking and permanent appropriation of his land by the railroad company; and second, to obtain an injunctional order, under chapter 80, Session Laws of 1858, enjoining and restraining the railroad company, its officers, agents, and all persons claiming under the company, from running cars or locomotives over the land thus appropriated, until this com pensation, and all costs are paid. Such appears to us to be the object and purpose of the action. We therefore cannot adopt the view taken of the case by the circuit court, and hold that it is "simply an action of trespass, coupled with an application for an injunction under the statute of 1858." This notion that the suit is instituted to recover damages for trespass quare clausum fregit, is decisively refuted by the allegations of the complaint. It alleges in substance that the railroad company, or those claiming under it, have taken possession of the respondent's land, (describing it); have located their railroad through and over it; are now using and occupying it, and running their cars &c., over the same; and states that the land thus taken is of the value of five thousand dollars. In the prayer for judgment, the respondent asks that the damages to his land, caused by the use and occupation of the same by the railroad company, be ascertained and assessed, and that the company may be adjudged to make compensation for such damages. These and other allegations in the pleadings, which might be referred to if necessary, fully and clearly show, that the action is not for a trespass quare clausum fregit, but that one of the objects of the suit was to obtain compensation for the property taken by the railroad company. Such being the case, it follows that the judgment recovered in the circuit court, for damages as for a trespass upon the respondent's land, cannot be sustained. Neither do we think that the judgment can be per 1860. DAVIS V. & MISSISSIPPI et al. mitted to stand as a compensation for the value of the land Jan. Term, taken. Assuming for the purposes of the case, that the respondent would not be confined to the statutory remedy, given by the charter and the various acts amendatory thereof, THE LA CROSSE but might proceed in this manner to have his land condem- RAILROAD CO. ned to the use of the company, and obtain compensation therefor, then it is obvious that all parties interested in the land, or who may be entitled thereto, should be brought before the court, so that they will be bound by the judgment and proceedings. In this view, the objection that there was a defect of parties, would seem to be insuperable. We therefore feel compelled to reverse so much of the judgment of the circuit court, as relates to damages for wrongs and injuries to the land and real estate of the respondent. But the complaint shows that the respondent is entitled to an injunctional order, under the statute of 1858, and we therefore affirm so much of the judgment of the circuit court, as enjoins and restrains the company, and all claiming under it, from running cars or locomotives on the land and real estate of the respondent described in his complaint, and taken and appropriated by the company, and from using such land or real estate for the purposes of said railroad company, in any manner whatever, until compensation, together with the costs and reasonable charges of the injunction and the proceedings therein, shall be fully paid over to the persons entitled thereto. It appears from the complaint, that the land and real estate had been permanently appropriated to the use of the company for about eighteen months, at the time the suit was commenced, and the company should either make due and just compensation for the property, or cease to use it altogether. The judgment of the circuit court is therefore reversed in part, and affirmed in part, in conformity to this opinion, but without costs to either party. DIXON, C. J., having been of counsel in the case, was ab sent. NOTE. The act of 1858, referred to in the text, was approved May 10th, and its first section was as follows: "In all cases where at the time of the passage of this Ross V. SUPERVISORS OUTAGAMIE Jan. Term, act, any railroad company in this state shall have taken or appropriated, or where 1860. any such company shall take and appropriate, for right of way, depot grounds, or for the use of such company in any manner whatever, any lands or real estate owned by any person resident in this state, and for which such person is or may be entitled to compensation from such railroad company, and such company shall have failed, neglected or refused, for six months after having taken and appropriated the same, by making and the laying of its track thereon, to make and pay such compensation to the person entitled thereto, the person so entitled, may, by writ of injunction or order, enjoin and restrain such railroad company, its officers &c., from running cars or locomotives over the land or real estate so taken or appropriated, and from using such land or real estate for the purposes of said company, in any manner whatever, until compensation, together with costs, &c., shall be fully paid over to the person entitled thereto."--Rep. Ross vs. THE BOARD OF SUPERVISORS OF OUTAGAMIE CO., impleaded with JOHNSTON and MORROW. Where a person settled, prior to July 6th, 1858, upon a part of one of the even numbered sections, selected by the governor under the act of Congress of March 2d, 1849, to make up the quantity of land due to the state, under the act of Congress of August 8th, 1846, granting lands for the improvement of the Fox and Wisconsin rivers, and in December, 1854, claimed a right, by virtue of such settlement, to purchase said land of the Fox and Wisconsin Improvement Company, (to which the state had transferred its interest in said grant, with a reservation of the right of pre-emption to settlers thereon,) proved his right, and paid said company for such land, and took a certificate of the purchase thereof: Held, That he acquired an interest or estate in such land, which was liable to taxation as real estate, in the year 1855, under the laws of this state, although from the failure of the President to approve the selection of such even numbered sections, the legal title thereto did not become vested in the state or its assigns until congress, by act of June 9th, 1858, enacted, that the even numbered sections so selected, and which had been sold by the state or its assigns, should be confirmed to said state as part of said grant made by the act of August 8th, 1846, and the title of the purchasers should be valid, as though said selection had been made in conformity to law. DIXON, C. J., dissenting. A statement in memorials addressed to congress by the legislature of Wisconsin in 1854 and 1856, that said even numbered sections were not liable to taxation, cannot be received to control the judgment of the court, when it is clearly of opinion that the law was otherwise. APPEAL from the Circuit Court of Outagamie County. This was an action to set aside a tax certificate issued upon a sale of a quarter section of land in the county of Outagamie, for the non-payment of taxes assessed for the year 1855, and to restrain Johnston, the clerk of the board of su Jan. Term, 1860. Ross pervisors, from executing a deed for said land to the defendant, Morrow, who was alleged to be the holder of the tax certificate. The principal question in the case was, whether the land referred to in the complaint was subject to assess- SUPERVISORS ment for town, county and state taxes, in the year 1855. The facts in the case, as they appear from the finding of the circuit court, are substantially as follows: By an act of congress, approved August 8th, 1816, there was granted to the state of Wisconsin, on its admission into the Union, for the purpose of improving the navigation of the Fox and Wisconsin rivers, &c., "a quantity of land, equal to one half of three sections in width, on each side of the said Fox river and the lakes through which it passes, &c., reserving the alternate sections to the United States, to be selected under the direction of the governor of said state, and such selection to be approved by the President of the United States. * Provided, the said alternate sections reserved to the United States shall [should] not be sold at a less rate than two dollars and fifty cents the acre." * The state of Wisconsin accepted said grant, and the odd numbered sections within the territorial limits of the grant, were selected under the direction of the governor, and the selection approved by the President. The United States had, however, sold part of the odd numbered sections so selected by the state, and congress, by an act approved March 2d, 1849, authorized the governor "to select the same quantity of other lands in lieu thereof; subject, however, to the approval of the President." In the month of June, 1849, the governor, in order to make up the deficiency in the quantity of land due to the state under said act of congress, selected, among other tracts, the quarter section of land referred to in the complaint, being part of one of the even numbered sections within the territorial limits of said grant, which selection the President of the United States did not confirm or approve. By an act, approved July 6th, 1853, the legislature of Wisconsin incorporated a company, under the name of the "Fox and Wisconsin Improvement Company," to complete the improvement of said rivers, the fourth section of which V. OUTAGAMIE Jan. Term, 1860. Ross V. OUTAGAMIE COUNTY. act declares, that the lands granted by congress in aid of said improvement, and remaining unsold, should be, and were thereby, granted to the Fox and Wisconsin Improvement SUPERVISORS Company, upon certain terms and conditions; that all the lands so granted to said company should be exempt from taxation of every description, under any law of this state, until after the same should have been sold and conveyed, or contracted to be sold, or leased, or improved, by said company; Provided, said exemption should not continue longer than ten years; that any person who might have acquired the right of pre-emption under the laws of this state, or of the United States, to any portion of said lands, or had settled thereon in his own right, prior to the passage of that act, should be entitled to purchase the same of said company, at the minimum price of one dollar and twenty-five cents per acre; and that it should be the duty of the governor to take every necessary means to obtain, at as early a day as possible, the lands theretofore selected, and such as might thereafter be located by the company for the balance of the grant in aid of said improvement. On the 25th of December, 1854, the plaintiff claimed the right to purchase the land referred to in the complaint, of the Fox and Wisconsin Improvement Company, at the price of one dollar and a quarter per acre, by virtue of a settlement made thereon by him, in his own right, prior to the 6th day of July, 1853, and on the said 25th of December, 1854, proved up his right to purchase said land at that price, before the proper officers of said company, paid the purchase money, being two hundred dollars, and received from the proper officer of the company a receipt therefor, stating that it was "in full" for said land. On the 1st of March, 1854, the legislature of the state of Wisconsin adopted a memorial to Congress, in which it was represented, that the even numbered sections of land on the Fox river, in the state of Wisconsin, and within three miles of said river, were reserved from sale in the year 1848, for the purpose of being donated to the state of Wisconsin, for the improvement of the Fox and Wisconsin rivers; and that with such expectation settlers went on to said lands, |