163 Wis. 1 | Wis. | 1916
Tbe following opinion was filed March 6, 1916:
It is conceded that tbe resolution of vacation was void at tbe time of tbe passage because of tbe entire lack of tbe petition and tbe notice to property owners which are required by tbe statute. Secs. 927, 904-, Stats. 1913. This renders it unnecessary to consider any of tbe other grounds upon which tbe validity of tbe resolution and tbe agreement which preceded tbe resolution are challenged. Tbe resolution being void when passed, its execution can, of course, be enjoined by a court of equity at tbe suit of one who, under established legal principles, suffers thereby an injury for which there is no adequate remedy at law and who seasonably brings bis action. Tbe conclusion which we reach on tbe merits of tbe plaintiff’s claim renders unnecessary any decision as to tbe validity or applicability to the present litigation of tbe validating act referred to in tbe statement of facts, viz. cb. 450 of tbe Laws of 1913, and we make no comment upon it.
It is true that the body of water in question is frequently called the Bay of Superior both on maps and in public speech, but we regard this as very natural and entirely inconclusive. As matter of fact there always was a.channel in the central part of this so-called bay through which the waters of the river always moved towards the lake; that the river is continuous from its source to its entrance into Lake Superior through the channel aforesaid and has always been so considered, seems to our minds well proven. It follows from this that the bed was the subject of private ownership and that the riparian proprietors could separate the ownership of the lands on the bank from the lands in the bed by conveyances. Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606; Kelley v. Salvas, 146 Wis. 543, 131 N. W. 436, and cases cited.
It cannot be doubted tbat tbe proprietors, by duly executed power of attorney, could have authorized Becker and Newton to make acknowledgment t and record tbe plat. Nelson v. Madison, 3 Biss. 244; Bushnell v. Scott, 21 Wis. 451. It is a familiar rule tbat what may be authorized in advance may be subsequently ratified, provided tbe ratification be of tbe same nature and executed with like formality as tbat required for conferring authority in tbe first instance. 2 Corp. Jur. p. 485, sec. 103; 1 Mecbem, Agency (2d ed.) secs. 419, 420.
We see no escape from tbe conclusion tbat there is here a complete ratification of the previously unauthorized plat. Newton and Becker had attempted to make and record a valid plat as agents of tbe proprietors, and tbe proprietors by a duly executed, acknowledged, and recorded instrument after-wards certify to tbe world tbat tbe land was surveyed and tbe plat recorded under their direction and authority. It is diffi
Nor is it necessary to consider the effect of the various general validation acts passed for the purpose of curing the defects existing in ancient plats and obviating the serious results to innocent purchasers which might follow from a decision holding such plats to have been defectively executed in the first instance. Secs. 1299;', 12997c, and 2216b, Stats. We entertain no doubt that the plat must now be considered as a valid statutory plat.
The overwhelming weight of the evidence taken on the subject is to the effect that the vacation of the streets and alleys in the submerged part of the plat did not substantially affect the market value (so far as there can be a market value) of the lots. The reasons for this opinion are apparent and easily understood. The city stands at the head of probably the greatest inland waterway in the world, the gateway between the water system of the Atlantic and the railroad systems of the Pacific; its future, if it has a future, must be commercial.and industrial, and it must necessarily depend in a very large degree upon the utilization of this wonderful landlocked water front. Transportation and manufacturing interests of the present day demand large unobstructed areas for their development; the day of the small enterprise of this nature is gone, probably never to-return. If this water front is to be utilized, the existing subdivisions into small lots and blocks with frequent streets must disappear in one way or another. Hence the witnesses are quite unanimous in concluding that, if there be any change in the value of the plaintiff’s lots resulting from the vacation proceedings, it is more likely
“Eor tbe sixty-one years that have elapsed since the platting no use whatever has been made of the plaintiff’s premises; no income has been derived therefrom and there is no intimation that'any use of them is intended. In fact it is clear that unless combined with other lots so as to form a large compact tract they are valueless for any commercial purpose. Each of tbe two lots is twenty-five feet in width and they might be utilized for the site of a small boathouse, and if the scheme of the compromise agreement between the city and the railroad companies could be carried out the lots could probably be sold for more than they are now worth to be incorporated into a large tract suitable for dock and warehouse purposes.”
No fair-minded person can carefully read the testimony and come to any other conclusion, as it seems to us. So we meet the question whether an enterprise involving a great public benefit both to the municipality and the people of an important city should be halted and killed by the courts at the suit of an individual citizen whose abstract rights have been infringed upon, but who will either suffer no injury or whose injury will be inconsequential and conjectural. This question has been met by numerous courts including our own and has been universally answered in the negative. In Mahler v. Brumder, 92 Wis. 477 (66 N. W. 502), at page 486 it was said: “Equity should not be successfully invoked merely to inflict injury or damage to the defendant, without securing any substantial right or benefit to the plaintiffand in the recent case of Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 154 N. W. 998, it is said: “The present or threatened injury must be real and not trifling, transient, or temporary. . . . Courts generally exercise their discretion against issuing an injunction, where it will produce great public or private mischief, merely to protect technical, doubtful, or unsubstantiál rights,” citing many cases from other
In the present case the evidence seems to us to demonstrate that the plaintiff’s injury is academic rather than real, or at most so insignificant in its character that no injunctive relief should be granted.
While we have had no difficulty in reaching this conclusion on the evidence before us it has not been entirely clear to us what form the judgment should take. If there be even slight damages they ought to be assessed either in the present action or in an action at law brought for that purpose after the dismissal of the present action. There has already been one long.and expensive trial of this case; manifestly it would be desirable for both parties if the whole matter could be now closed and the necessity of another trial of the present action or the bringing of a new action obviated. We are of opinion that under the circumstances present in this case this may well be done.
The defendants have in effect stipulated and agreed to pay any damages found to exist by the trial court. Their answers contained a formal offer and consent that the damages might
“But assuming that he has rights beyond the limits of his lot lines, the utmost value that can be put upon them is $750 apiece, and it is my judgment, from all the evidence, that a liberal allowance for damages in case the vacation proceedings are ultimately sustained is one third of the value of the lots.”
It will be noticed that this allowance is based on the assumption that the lots extend to the harbor line, an assumption about which there may be much doubt.
While this was evidently considered a finding of fact by the trial judge, it was for some reason not inserted in the formal findings of fact.
Doubtless, under the offers contained in the answers the plaintiff might have accepted this sum and entered judgment upon it. He chose not to do so, however, and accepted the equitable relief awarded by the court. He is now held on defendants’ appeal not to have been entitled to this equitable relief. While it is true that an election of remedies once made is ordinarily final, we think it entirely within the power of
The judgment will be that the judgment of the trial court be reversed, and the action remanded with directions to enter judgment awarding the plaintiff a recovery of $500 against the defendants, and in all other respects dismissing the complaint on the merits without costs to either party. But one bill of costs to be taxed'by the appellants in this court.
By the Court. — It is so ordered.