60 Op. Att'y Gen. 272 (1971)
 
60 OAG 272  273  274  275  276  END

Wisconsin Attorney General Opinions

29 July 1971

Forest Crop Law   Counties,
Restrictive Covenants   (Informal)

Iron County does not have the power to
incorporate a restrictive covenant in its
conveyances which prohibits the grantee from
entering land under the Forest Crop Law
because the State has passed controlling
legislation in this area and because such
covenants contradict the express policy of
Chapter 77, Stats.

60 OAG 272  273  274  275  276  END

L. P. VOIGT, Secretary,
Department of Natural Resources

You have inquired whether Iron County has the
power to incorporate a restrictive convenant
[covenant] in its conveyances which prohibits
the grantee from entering the land under the
Forest Crop Law.

The restriction utilized by upon Iron County
reads as follows:

   Also, so long as the within described
   property is not placed into forest crop
   reserves by the grantee and if said
   lands are entered into forest crop by
   the grantee, said property shall revert
   to the grantor forthwith.

It is my opinion that this restrictive
covenant is invalid for two reasons.

First, the State has given the right to an
owner of qualifying lands to enter his land
under the Forest Crop Law.

The basic question here is whether the county
can further limit the rights granted to an
owner of land by Chapter 77, Stats.

Any conflict should be resolved
in favor of the State.

26 C.J.S. Deeds, Section 12, p. 597, states:

   The state has an inherent right to
   regulate the alienation of real estate
   within its borders, provided it does not
   violate constitutional guaranties.

   The methods of conveyancing and the
   character and quality of the estates
   thereby created are entirely within the
   control of the legislature . . .

Since the State has not further restricted
qualifying lands, it seems that preemption
principles should apply.

This means that, since the county is an
arm of the State, all of its powers
derive from the State.

In

State ex rel. v. Schinz (1927),
194 Wis. 397,
216 N.W. 509,

the court quoted Section 112 of Vol. 1 of
McQuillan on Municipal Corporations as
follows:

. . .

   With scarcely an exception, all the
   powers and functions of the county
   organization have a direct and exclusive
   reference to the general policy of the
   states and are, in fact, but a branch of
   the general administration of that
   policy.

60 OAG 272  273  274  275  276  END

Thus, the State determines the extent of its
policies. The county has no power to extend
or limit the implementation of what the State
has declared to be the proper method of
giving effect to its policies.

The Schinz case, supra, also stated:

   It (referring to county) exists not
   by virtue of its own will or
   consent, but as a result of the
   superimposed will of the state.

Thus, the county is precluded from
incorporating this type of
restriction in it deeds.

The second reason for the convenant's
invalidity is that the restriction
contradicts an express public policy as
expressed in Section 77.01, Stats.

The purpose of the statute is
to encourage a policy

   of reproducing and growing for the
   future adequate crops of forest
   products on lands not more
   useful for other purposes.

To allow a county to impose such a
restriction on otherwise qualifying
lands would contradict the policy
expressed by the State.

26 C.J.S., Deeds, Section 144, Page 1042,
states the general rule:

   A grantor, in a deed, may specify,
   limit, or restrict the use or occupation
   of property, or prohibit its use for a
   specified purpose; but conditions or
   restrictions affecting the use or
   occupation of property should not be
   against public policy, . . .

Here, the expressed public policy precludes
the county from taking actions that would
undermine the clear intent of the State.

The apparent purpose of the county's
restriction is to prevent the diminution
of monies received from taxation.

Since the Forest Crop Laws allow favorable
tax rates to the owner, it necessarily
means a diminution in monies received
by the county.

However, a method of restricting entry of
such lands of less than 40 acres is available
to the county in Section 77.16 (7), Stats.,
which states:

   The owner, town board or county board
   may petition the department of natural
   resources for a public hearing to take
   testimony and hear evidence on whether
   lands shall be entered or continued
   under this section.

60 OAG 272  273  274  275  276  END

With regard to an owner of more than 40
acres, there is no similar provision
relating to a county.

The only provisions relating to review of
lands of more than 40 acres entered under
this chapter pertain to the town board of the
town in which the land lies to petition as to
whether any lands entered, shall continue
under the provisions of Chapter 77.

The county is not expressly given standing
to petition for a review.

Therefore, such restrictive covenants cannot
be given legal effect, since the State has
passed controlling legislation in this area
and, since such covenants contradict the
express policy of the chapter.

Finally, it is left to the Department of
Natural Resources to determine if the land
qualifies in a

   manner not hampering towns in which
   such lands lie from receiving their
   just tax revenue from such lands.

No similar power resides in the county.

Policy considerations also suggest that
uniformity is desired in such determinations
and this is one reason why the Department of
Natural Resources, rather than the county, is
given the sole power to determine whether
lands qualify under the Forest Crop Laws.

Finally, your letter does not indicate
whether incorporating this restriction is
pursuant to a county ordinance or if it is
being done by the county clerk without any
authorization.

Although, in my opinion, such restrictive
covenants are invalid, the existence of such
covenants in deeds already executed may
create a cloud on the purchaser's title.

Such defects can be eliminated
in one of three ways.

First, if such action is taken pursuant to a
county ordinance, and, if the county does not
voluntarily repeal it and void all
restrictive convenants [covenants] already
executed, then a declaratory judgment may be
necessary to declare the ordinance invalid.

Secondly, if such action is taken by the
county clerk without any authorization, and,
if it is not voluntarily discontinued, then a
writ of mandamus will be necessary to compel
him to cease from incorporating these
restrictions and to order him to reissue the
previous deeds without the restrictions.

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Thirdly, the grantee can bring
an action to quiet title.

RWW:TLP

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