City of Milwaukee v. Milwaukee & Beloit Railroad

7 Wis. 85 | Wis. | 1859

By the Court,

Whiton, C. J.

We shall not discuss many of the points argued by the counsel of the parties in this case; because in our opinion the city of Milwaukee, in its corporate capacity, has not such an interest or property in the street and public square across, and along which, the railroad company are building their road, as to authorize it to maintain this action. In the case of Kimball vs. the City of Kenosha (4 Wis., R. 321.) we held that the lot owners, where lots are bounded by a public street, owned the soil to the cen-tre ot the street. This seems to be decisive of the fact that the city has strictly and properly no property in the land occupied by the street. It is true that the complainant alleges that the “fee of said street and public square is vested in said city by dedication irom the owners of the landbut this allegation in the complaint is denied in the answer, so far as it relates to this street in question.

We do not see how it can be possible for the city to become the owner of the fee by dedication. Land may be dedicated to public use, and the public may by the dedication acquire a right to the use; but we are not aware that the fee of land can be vested in any one by that act. Gardner vs. Tisdale et al., (2 Wis. R. 195.) We must therefore reverse the order of the circuit court, and remand the case for further proceedings, according to law.