Brown v. City of Baraboo

98 Wis. 273 | Wis. | 1898

Cassoday, C. J.

1. Counsel contends that the defendant did not get title to any portion of the strip of land in question by virtue of any deed made by George W. Brown in his lifetime. The material question is whether George W. Brown, by such deed or deeds, parted with the title to any portion of such strip of land. If he did, then as to such portion his parents took no title. It is a cardinal principle in actions of ejectment that the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness or want of title in the defendant. Kelley v. McKeon, 67 Wis. 561, and cases there cited. He roust establish such title as against the world, or as against the defendant as a wrongdoer. Id. “ It is an action to try the title and right to the possession of land. More accurately, it is an action to determine the plaintiff’s title and his right to the possession.” Baldwin v. Ely, 66 Wis. 177.

Conceding that the words in the deed from G-eorge W. Brown to Philarmon Pratt, “ all the land lying between the present ráce and the Baraboo river,” were erased before the execution of that deed, as contended by counsel, yet it does not follow that George W. Brown did not, in his lifetime, part with all title to that portion of the strip in question which lies between the mill race and the center of the river, since the deed from him to Delando Pratt and L. and J. ITayes was, manifestly, of land between the mill race and the river, as the same was “ situated at the south end of the said George W. Brown’s mill dam.” That dam, as appears from the plats in evidence, was in line with Yine street and Oak street extended. The land conveyed to De-lando Pratt and L. and J. Hayes was expressly excepted from such conveyance to Philarmon Pratt; and the erasures mentioned may have been, and probably were, so made, because otherwise they would have included the lands thus excepted. The contention that, the land bounded by the river did not extend to the center of the river is certainly without foundation. Norcross v. Griffiths, 65 Wis. 599. But, independent of that, the land so conveyed to Philarmon Pratt was bounded “on the east by Walnut street, on the •south by block number 7, on the west by Yine street,” and “ on the north by the center of the Baraboo river,” and conveyed “ the sawmill and the south half of the dam.” The land so conveyed is a portion of the land marked on the plat as “reserved for private use;” and although bounded on the east by ’Walnut street, and on tbe west by Yine street, yet neither of those streets appears upon the plat as extending north of block 7. Nevertheless, the grantee in that deed, and those claiming under him, thereby acquired the right, as against the grantor and those claiming under him, to treat each and both of these streets as extending north to the river; and it is established by the evidence that at the time of making the deed Yine street was being used by the public as and for a public street, four rods wide, from blocks 7 and 8, as far north as the mill race; and that such use by the public has continued ever since, and that for more than forty years Yine street, so extended, has been used by the public, as and for a public street, as far north as the river. There can be no question but that Pratt, as such grantee, took title to the center of Yine street, so extended to the river, subject, however, to the public easement. “It is the„ settled doctrine in this state that the grantee of a lot in a recorded plat, except where the terms of his deed or the pjat expressly exclude that construction, takes to the center of adjoining public ways, subject to the-public easement; and the fact that the description in his deed, after stating the number of his lot, gives its dimensions as they are exclusive of the highway, does not affect the construction.” Pettibone v. Hamilton, 40 Wis. 402; Jarstadt v. Morgan, 48 Wis. 245; Andrews v. Youmans, 78 Wis. 56; Johnson & Co. v. Arnold, 91 Ga. 659.

2. The warranty deed of August 28, 1854, from Chauncey Brown to Sanford and Bassett, mentioned in the foregoing statement, covered and purported to convey the absolute title to “all of the mill reservation along Water street and south to the Baraboo river, together with the water power and reservation on the south side of the Baraboo river, all of that piece of land lying north of the north line of blocks number 6, 7, and 8, and south of the Baraboo river.” This included the west half of Yine street, so extended north from blocks 7 and 8 to the center of the Baraboo river, and in fact the whole of that street so extended from these blocks north to Water street, designated on the plat. It is conceded that that deed conveyed the undivided one-half of all the lands described therein, and of which George W. Brown died seised,— as all the lands of which he so died seised descended to his father and mother equally, as tenants in common. Brown v. Baraboo, 90 Wis. 151. The mother having died intestate prior to the deed so given to Sanford and Bassett,, her moiety of such lands descended to her heirs at law, subject to an estate for life in her husband, Chauncey Brown, as tenant thereof by the curtesy. R. S. 1858, ch. 89, sec. 80; E. S. 1878, sec. 2180. As such life estate terminated on the death of Chauncey Brown, it follows that the legal title and right to the possession of the several interests of William Brown, Franklin Brown, Martha Langdon, and Lura Blake, under whom the plaintiff claims title, representing four tenths of one half of so much of the strip of land in question as George W. Brown died seised of, becaine absolutely vested in them, severally, September 26,1863. And yet it is undisputed that August 28,1854, Sanford and Bassett, under such warranty deed to them from Chauncey Brown, purporting to convey to them the whole .title to the lands in question, entered into the immediate possession of said lands, and the whole thereof, and that ever since that time they and their grantees have been in the actual, open, visible, notorious, and exclusive possession of the same, and the whole thereof, and that such title remained undisputed until the commencement of this action, October 10,.1892. The defendant’s title to so much of the strip of land in question as George W. Brown died seised of is directly traceable to the deed to Sanford and Bassett mentioned. Thus it appears that William Brown, Franklin Brown, Martha Langdon, and Lura Blake, severally, slept on their rights, and made no claim to any portion of the strip of land in question, for more than twenty-nine years. Daring that time neither William Brown nor Franklin Brown was under any disability. It is true that Mrs. Langdon and Mrs. Blake were married women at the time of Chauncey Brown’s death, when such real estate descended to them and their right of action therefor first accrued; and hence the statute of limitations did not, by reason of their disability, commence to run against either of them under the statute then in force. E. S. 1858, ch. 138, sec. 13. Such ■disability of married women was entirely removed March 2, 1872, by ch. 29, Laws of 1872, and such has since that time continued to be the law. E. S. 1878, sec. 4218. The result is ■that the ten-years statute of limitation commenced running •against Mrs. Langdon and Mrs. Blake, respectively, March 2, 1872, and against William Brown and Franklin Brown, respectively, September 26,1863. E. S. 1878, sec. 4211. The action was not commenced until more than twenty years after the cause of action accrued in favor of the women, and more •than twenty-nine years after the cause of action accrued in favor of the men. The fact that Chauncey Brown only had a life estate in the undivided one-half of the lands so conveyed by him to Sanford and Bassett did not prevent the statute running in their favor or in favor of the defendant •as a grantee under them. Wiesner v. Zaun, 39 Wis. 188; Westcott v. Miller, 42 Wis. 463, 464; Barrett v. Stradl, 73 Wis. 385. Thus it appears that neither William Brown, nor Franklin Brown, nor Mrs. Langdon, nor Mrs. Blake, was seised or possessed of any portion of the strip of land in question at any time during the twenty years immediately before the commencement of this action, and hence the plaintiff is barred from maintaining the same." R. S. 1878, sec. 4207.

3. The court found that by the plat of the village of Bara-boo, made November 1, 1847, George W. Brown dedicated to the public, as a public street, all that portion of the land specified in the complaint which lies north of the south line •of Water street, designated thereon. As indicated in the statement made, that plat extended north to the town line. Adjoining that plat on the north, and in another town, there was at the time a plat of the village of Adams. Oak street, mentioned, ran north and south and was one of the streets so platted in the village of Adams. Yine street, as indicated on the plat of the village of Baraboo, was in the direct line with Oak street, as designated on the plat of the village of Adams. Between blocks 2 and 3 in the village plat of Bara-boo, and extending from Water street'north to Oak street, on the town line, a street is designated on the plat, and the same must be regarded as a part of Yine street. This explains why the land conveyed by George W. Brown to Pratt was bounded on the west by Yine street. On the plat of the village of Baraboo, Water street is designated as running east and west along the south side of blocks 1, 2, and 3. It is true that the south line of the western portion of that street is not designated on the plat, but the several lots in blocks 1, 2, and 3 front upon it, and three streets from the north are indicated as running into it, and two streets on the eastern end are designated as running into it from the south. Besides, it is stated on the plat, among other things, that “all full lots are 66 feet by 132,— all the streets 66 feet wide.” The mere fact that the south line of the street, on the/western end thereof, is not designated on the plat, does not, in our judgment, prevent the effectual, dedication to the public of Water street as and for a public street. True, the statute required the plat to “ particularly describe and set forth all the streets, . . . giving the names, widths, courses, boundaries, and extent of all such streets.” Terr. Stats, of 1839, p. 159, § 1; N. S. 1849, ch.41, sec. 1. But that was, in effect, done. Ely v. Bates, 5 Wis. 467; Weisbrod v. C. & N. W. R. Co. 21 Wis. 602. The plat made and recorded, as indicated, followed by public travel upon such streets for more than forty years, must be regarded as a sufficient dedication of the streets to the public for public use as sucb. Buchanan v. Curtis, 25 Wis. 99; Pettibone v. Hamilton, 40 Wis. 402; Jarstadt v. Morgan, 48 Wis. 245; Donohoo v. Murray, 62 Wis. 100.

We find no error in the record.

By the Court.— The judgment of the circuit court is affirmed.