Bates v. City of Beloit

103 Wis. 90 | Wis. | 1899

Dodge, J.

In the view we have taken of one of the questions presented, it will be unnecessary to decide several other interesting ones discussed by the briefs. It is contended by the defendant that although the Hopkins plat was decided to be invalidly executed, in Gardiner v. Tisdale, 2 Wis. 153, because the certificate of acknowledgment was annexed thereto, instead of being indorsed thereon, that holding has been overruled in subsequent decisions of this court. Weisbrod v. C. & N. W. R. Co. 18 Wis. 35; Ranis v. Pulton, 52 Wis. 657; and State v. Schwin, 65 Wis. 207. Further, that in any event the curative acts now embodied in sec. 22165, Stats. 1898, have given it full validity and efficacy as a statutory dedication. Williams v. Milwaukee I. E. Asso. 79 Wis. 524. The defendant also contends, and the court below has decided, that there has been adverse, exclusive, and continuous possession, under claim of at least possessory title, for not only more than ten years, but for more than twenty years, and that the Hopkins plat, even if not valid as a statutory dedication, is a color of title, so that plaintiffs’ action is barred both by the ten-year and the twenty-year statutes of limitation, which contention receives much support from the very comprehensive opinion of Judge Jenkins in La Crosse v. Cameron, 46 U. S. App.. 722.

The findings, however, disclose that in 1838 Horace White caused to be made and published the Kelsou plat, and after his entry of the land, April 13, 1840, made conveyances with reference thereto, with the intent to dedicate the tract marked “Mechanics’ Green” as a public park, and that, with like intent, he made, executed, and recorded the Hopkins plat, July 29, 1840 (which, whether or not rendered effective as a conveyance, is made admissible in evidence by its record, by sec. 22165, Stats. 1898), and immediately followed it with a large number of conveyances referring to that plat, and some of them referring specifically to Mechanics’ Green, and bounding upon it; that immediately after the making of the Hopkins plat the public entered into possession of Mechanics’ Green, and occupied and used the same as a public park, and that officers and residents of the town and of the village of Beloit accepted the dedication of said lands as a public park, and that the same have been publicly, openly, and notoriously occupied, possessed, and used for such purposes ever since 1840; that Horace White and his heirs knew of such occupation and use, and never objected thereto; and that said premises have never been assessed for taxation. These findings are abundantly supported by the evidence. The designation of the space as “Mechanics’Green,” the laying out of certain lots in block 54 which would be wholly inaccessible unless Mechanics’ Green were public, accompanied by the notorious reputation of a dedication, are sufficient of themselves to support the finding of animus dediccmdi in publishing the Kelsou plat and selling lots according to it, — • which finding, by the way, is not excepted to. When this evidence is supplemented, however, by the subsequent acts of Dr. White, namely, repeating his plat in 1840 with the same features indicating a purpose to dedicate, and without saying or doing anything to repudiate the general understanding and repute of such purpose, of which he must have had knowledge, and permitting, without protest, assumption of control by the public, and expenditure of labor and expense by the community in fitting the ground for public use,'no reasonable doubt remains that he intended to dedicate at the time of making the Kelsou plat, and at the time of making conveyance under it. Uor, in the light of those acts, can there be any doubt that such intention continued, and was again declared by the attempt to legally record the Hopkins plat in 1840. Uo less abundant and convincing is the evidence of acceptance. The grounds were used from the earliest times by the public, which in those days of abundant uninclosed premises might not alone be conclusive, but tnat use was accompanied by a general understanding and reputation that this particular space had been donated for park purposes. In 1843 the community cleared off the ground, and held a Fourth of July celebration there, and in the same year used it as a place of meeting for highway commissioners. It is difficult to conceive any more cogent acts possible to a community before the organization of any municipal government. Such acts have been followed by continued user by the public ever since, and by expenditure of money by the public authorities in improving the premises for such use, in inclosing the same, and resisting invasion thereof.

To the facts thus found to exist, the rules of law applicable are elementary. The deliberate appropriation by the owner of land for any general and public uses, by some act or conduct which evinces such intent, constitutes a dedication myoais,— absolute when followed by user or acceptance. Gardiner v. Tisdale, 2 Wis. 153, 187; Weisbrod v. C. & N. W. R. Co. 21 Wis. 602, 609; Bartlett v. Beardmore, 77 Wis. 356, 364; Cincinnati v. White’s Lessee, 6 Pet. 431; Abbott v. Cottage City, 143 Mass. 521; Attorney General v. Abbott, 154 Mass. 323, 328; 2 Dillon, Mun. Corp. (4th ed.), § 630 et seg.; Elliott, Roads & S. 90 et seg. Such appropriation, user, and •acceptance are all shown in this case, and we have no hesitation in holding that the tract in question has been dedicated for use as a public park, and that defendant lawfully holds it in trust for such use, as the circuit court decided.

By the Court. — Judgment affirmed.