State ex rel. Mengel v. Steber

It must be conceded that, whether the Plankroad Company possessed power to make the lease to Van Curen, it was competent for the legislature to have given it such power, originally, or to confer it by ratification, as wa<s done by the act of 1874. Therefore, be and all who took title through or under him, for the full term of fifty years, succeeded to all authority to maintain and operate the toll road which the original grantee possessed. The validating act is very specific. Note the language:

“And the said lessee, his heirs, representatives and assigns shall have and enjoy all the rights, privileges and franchises conferred upon him or them, or which were intended to he conferred upon him or them by the terms of the lease aforesaid in as full and ample a manner as the same are set' forth therein and as though the said president and directors at the time of making, executing and delivering thereof had under and by virtue of the charter of said company full power and authority to make said lease and to confer upon the said lessee, his heirs, representatives and assigns all the powers, privileges, rights and franchises therein mentioned.”

Note also the unmistakable purpose of the act to render the holder of the leasehold, to all intents and purposes, the rightful representative of the corporation for the full leasehold term and to conclusively quiet all questions as to the right of the company to make the lease of its property, including its franchises, and all question as to assignability of the lease, regardless of the continued existence of the company. The original lease and chain of title under it were expressly made conclusive proof of the right of the last one in the chain; that one being in actual possession of the property, claiming under such chain, by assignment or otherwise, to exercise all the *511powers and privileges conferred by thp original grant, and, to redder donbly sure that the claimant under such chain should not have his right efficiently challenged, the legislature declared that the act should be liberally construed in all courts and places for the purpose of carrying out the objects thereof.

Notwithstanding, technically, accurate words were not used in all cases in the papers forming the aforesaid chain of title, — since no particular form of conveyance was required by law, and there was a succession of possession, enjoyment, and claim of right referable to such chain, and it was recognized as efficient down to and inclusive of the act of 1874 and did not materially change in character down to and inclusive of the situation when this action was commenced, — there seems to be no fair room for doubt but what defendant to the end of the fifty-year term possessed all the rights which the original lessee acquired, • viz.: not only to possess the road, franchises, and privileges as fully as the lessor could, but also to have and exercise, in the name of the company, “all the powers necessary to protect said road rights, privileges and franchises, . . . and to enforce collection of tolls thereon in as full and ample a manner as said company, would have were it in the occupancy of the same road rights, privileges and franchises under its charter,'and for that purpose” do anything which the company might do “for the enforcement of its rights, the protection-of its'road, privileges and franchises, and the collection of tolls” the same as if the company “were in the actual possession of said road owning and occupying the same under this charter.” The term covered by the statute was fifty years from and after June 1, 1862, and, thereafter, the mere fact that the person in possession to the end of the term continued operating the property as before up to the commencement of 'this action, — a period of about one week, — does not efficiently indicate an abandonment under sec. 1895, Stats., so as to render it a public highway. The *512sixty days of the statute had not expired when the action was commenced. Moreover, the validation of the lease gave it the same character as if the lessor had original authority to make it, and the parties the same status at the termination of the leasehold period. Eull right to the property then reverted to the corporation, and the person in possession possessed it for the former in the capacity of a tenant holding over.

It would seem to follow that the defendant was not unlawfully, as regards the public, committing the wrongs charged against him when this action was commenced or when it was terminated. The trial court held, in harmony with this, SO' far as the leasehold term is concerned, — that is, that the various persons in the chain of title from the original lessee,, including the defendant, became possessed of all the rights attempted to be created by the lease down to and inclusive of June 1, 1912, but seemed to think that, because the corporation did not immediately step in and repossess the property at that time, and defendant claimed title in excess of what he actually possessed, that he was a wrongdoer, — a usurper as against the public, — and though the franchises granted to the corporation were not forfeited, an action would lie to prevent any one but the corporation from exercising them after expiration of the leasehold term, under any claim of title not referable to the lease and dependable upon it; and, inasmuch as defendant claimed as owner instead of as tenant holding over, his answer was demurrable. The court adopted rather a too technical rule for testing the sufficiency of the pleading. It is contrary to the letter and spirit of the Code and of repeated decisions of this court in respect thereto. The proper test is not what the pleader claims to be his right's on the facts alleged, but the justice of his case for attack or defense on all the facts stated expressly, supplemented by all which appear by reasonable inference, giving to the pleading the most liberal construction it will fairly bear in favor of the pleader. Under that rule it makes no difference that the *513defendant alleged himself to be the absolute owner of the property in question, though > his right were that of a lessee.

The facts pleaded, expressly, and inferably, show that defendant claims the fights of a lessee under the lease of 1863, and makes in addition a eláim 'of ownership by reason of the facts. If he have not the latter right, but be possessed of the former, the mere excessive claiin does not' render the pleading demurrable.

The learned circuit judge erred after rightfully holding,

“If the defendant were answering that he is exercising the right in question by authority or permission given by the original incorporation after expiration of the lease, or as a tenant at will or by sufferance of that corporation, the point would quite likely be well taken,”

that notwithstanding the facts pleaded show clearly that his position and acts were legal by reference to the lease, they were illegal because he claimed rights of a still greater dignity.

The rules of pleading are the same in a.quo warranto action as in -any other. A defendant is not held to any strict accuracy of claim, and his pleading to be construed out of harmony with the liberal rules of the Code. He is entitled to stand on whatever his rights are, as indicated expressly, or inferentially from his pleading — regardless of any excessive claim therein or otherwise as to his legal status.

The statutory repeal of the common-law requirement as to writs of quo warranto and informations in the nature of quo warrantOj and placing the vindication of violated public and private rights which were formerly exclusively within the field of such remedy within that of the ordinary civil action, made. operative in respect thereto all those liberal rules of pleading which characterize the Code remedy. The old forms, as was early held, were intended to be abolished by the Code and the ordinary civil action substituted, to be commenced and prosecuted in all respects like other civil actions. *514State ex rel. Att’y Gen. v. Messmore, 14 Wis. 115. Such an action is wholly governed by sec. 3463, Stats., and the established principles in the written Taw respecting civil actions. State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171. True, the nature of the remedy was not abolished by the Code; so old names have been retained and are commonly used as the most convenient' way of referring to the subject; but the form and the, technical rules of pleading have been done away with, and the court, when invoked in the new form, should be guided by the real justice of the controversy from the standpoint of the law within the scope of the case disclosed by the pleading, broadly construed. True, now as before, the alleged wrongdoer must answer, when sufficiently charged, upon what warrant he claims the authority he assumes to possess (State ex rel. Att’y Gen. v. Foote, 11 Wis. 14), but his true status must depend upon the facts disclosed rather than any conclusion of law or fact which may be pleaded.

It follows that the order appealed from must be reversed, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.