City of Superior v. Northwestern Fuel Co.

164 Wis. 631 | Wis. | 1917

RoseNBBRRY, J.

It is claimed that the making, acknowledging, certifying, and filing of the plat known as Roy’s Addition (Exhibit A) did not amount to a statutory dedication for the reason that the makers thereof did not comply with the statutes relating thereto. At the time the plat was executed secs. 2260 to 2264, R. S. 1818, were in force. So far as material they are as follows:

“Section 2260. Any person owning any tract of land, wherever situated, wishing to divide the same into lots, streets and alleys, for the purpose of sale or assessment or both, may cause the same to be accurately surveyed and divided into lots, or lots and blocks, streets and alleys, commons or public grounds as he may choose. The boundaries of all lots containing an area of more than one acre, and of all blocks, streets and alleys, shall be marked and established in the field by suitable monuments, placed at all the corners of each such lot and block, and at the beginning and terminus of each street and at every angle of a street.”

“Section 2261. The following requirements shall be fully complied with to entitle a map made under the provisions of the preceding section to be recorded:

“First. On the face of the map it shall appear: . . .

“3. The length and courses of all exterior boundary lines and of the boundary lines of all lots or other subdivisions designated on the map and the center line of all streets, when ■-such, center line is not used as a boundary line, shall be noted in their proper places.

“4. All monuments erected in the field must be represented in their proper places thereon, and the kind of material of which such monument is composed noted at the representation thereof. ...

“Second. On the back of every such map offered for record shall appear and be written the certificate of the surveyor who surveyed and mapped the land, . . .”

The plat is said to be deficient in the following respects: •(1) The center lines of the streets do not appear on the face of the map. (2) The map does not show that monuments were placed at the beginning and terminus of each street, and the kind of material of which the monuments were constructed. (3) The respective ownerships are not properly indicated on the map.

The original map was not introduced in evidence, but in lieu thereof a certified copy of the record thereof in the office of the register of deeds was offered and received. Upon the map is a legend describing in great detail the lands platted, the courses and distances of the boundaries, the size and location of the lots, the manner in which the beginnings and termini of the streets were indicated, the location of. monuments, the dimensions and locations of alleys, and the material of which monuments were constructed; so that by the ■aid of the legend every material fact required by the statute to be exhibited upon the map can be definitely ascertained and located. The certificate of the surveyor was full and complete, and he certified that he had fully complied with the provisions of ch. 101 of the Revised Statutes of 1878 in surveying, subdividing, and mapping the said premises. The original not being produced, we must assume that the original map was in accordance with the record. However, we are of the opinion that the map, the legend thereon, and the certificate of the surveyor must be taken together, and that when so considered they constitute a substantial compliance-with the requirements of tbe statute, and that therefore there-was a, statutory dedication of the lands embraced within the plat known as Roy’s Addition.

It furthermore appears from the map and legend that it was the intention of the plattors to extend Superior street to the southwesterly shore of the St. Louis river or Bay of Superior. In describing that part of the exterior boundary beginning at the point where the northeasterly line of Water street intersects the easterly line of Superior street or Hill avenue (Exhibit A), the legend says: “thence north 270 feet to the Bay of Superior, thence running northwesterly along said bay 80 feet, thence south 3,300 feet.” There could have been no other purpose in the making of this jog than to extend Superior street (Hill avenue) north to the southwesterly shore of the Bay of Superior or the St. Louis river.

Under well established principles of law, the street being-thus dedicated to the shore line of the river, the public became vested with the right to pass over that part of the submerged land lying between the shore and the dock line as established by the United States, the boundaries of said strip to be determined by dropping lines at right angles to the thread of the stream to the points where the boundaries of Hill avenue intersected the shore of the river. It is thus clear that the city had the right claimed by it to the strip in question, and the judgment must be sustained unless the city is estopped by its conduct from now asserting that right to the disadvantage of the defendant. This court has said:

“It was contended that the city was not estopped under the circumstances from opening the street; that the city officers could not alienate the public rights; and that neither neglect nor positive acts of disclaimer in pais would lay the foundation for an equitable estoppel against the rights of the public, and very many authorities were cited to that effect. The city authorities have charge of and represent the rights of the public in and to the public streets, and it has been held, and we think with great reason, that under circumstances such as are presented the city and its officers will be held bound by an es-toppel in pais, to prevent injustice, from insisting upon and exercising as against the present plaintiff the rights acquired by the recorded plats.” Paine L. Co. v. Oshkosh, 89 Wis. 449, 459, 61 N. W. 1108.

The court also approved of the law as stated by Dillon (Mun. Corp. sec. 675), as follows:

“While the [municipal] ‘corporation does not own and'cannot alienate the public streets or places, and no mere laches on its part or on the part of its officers can defeat the right of the public thereto; yet there may grow up, in consequence, private rights of more persuasive force in the particular case than those of the public.’ ... ‘It will perhaps be found that cases sometimes~krise of such a character that justice requires that an equitable estoppel should be asserted even against the public.’ . . . ‘There is no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, as this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the case to hold the public estopped or not, as right and justice may require.’” Paine L. Co. v. Oshkosh, 89 Wis. 449, 460, 61 N. W. 1108.

See, also, Racine v. C. & N. W. R. Co. 92 Wis. 118, 65 N. W. 857; Ashland v. C. & N. W. R. Co. 105 Wis. 398, 80 N. W. 1101; Davis v. Appleton, 109 Wis. 580, 85 N. W. 515; Ashland v. N. P. R. Co. 119 Wis. 204, 96 N. W. 688; Arnold v. Volkman, 123 Wis. 54, 101 N. W. 158.

In order that an estoppel in pais may arise there must be (1) inequitable conduct on the part of the city, and (2) irreparable injury to parties honestly and in good faith acting in reliance thereon.

In addition to the fact that the city had never used or occupied that part of Hill avenue lying north of the northerly line of Bay street and that the same had never been opened for public travel, it appears that in 1900, upon the application of the Land & River Company, the city solemnly accepted a plat of the premises in question, replatting the premises involved in this action, and in its whole extent no donbt conferring many valuable rights upon the public by way of dedication. It is hardly to be supposed that the city authorities did this without sufficient consideration, and no doubt for the reason that, balancing the gains against the losses, if any, they thought the public interest would be promoted by the acceptance of the plat of Sweetzer’s Division. After the plat of Sweetzer’s Division had been approved by the public authorities and recorded as required by law, the Fuel Company purchased blocks 503 and 504 in accordance with the plat of the Sweetzer Division and in reliance upon it. Further relying upon this affirmative conduct on the part of the city, the Fuel Company commenced the erection of very valuable and expensive improvements upon the property in question. Two years thereafter the city, dealing with the Fuel Company, acknowledged the ownership of the Fuel Company, and in fact never asserted any rights as against the Fuel Company until it was brought into court by a third party.

The trial court found that the improvements made by the defendant upon said property consisted of a large coal dock constructed at an expense of several hundred thousand dollars. While it was stipulated by the parties that if the plaintiff should recover in this action it should be entitled, in lieu of the riparian rights extending out from Hill avenue, to the same rights, privileges, and easements or public way to and over submerged land in lots 1 and 2 in block 503, that fact cannot be considered in the determination of the issues in this case. The determination of this case must be based upon the facts as they existed at the time the action was begun. If upon these facts the city is entitled to judgment, then its rights are by the stipulation to be transferred to lots 1 and 2 of block 503.

While the improvements placed upon lot 1 of block 504 prior to the making of the stipulation were not of themselves extensive, the improvements placed upon the remainder of tbe property were extensive and of such a character that material and important changes in the plant would be made necessary by the opening of a waterway through the property which should be traveled and used by. the public, resulting in damage to the Fuel Company estimated at the sum of $100,000, in addition to permanently impairing its usefulness. We think the facts in this case bring it clearly within the rule stated in Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108, and that the city of Superior, by reason of its acceptance of the plat, recognition of the Fuel Company's rights therein, permitting improvements of an extensive and valuable character to be made thereon without objection, and taxing the property as if owned by the Fuel Company, is estopped, in view of the nature and character of the improvements made in reliance upon the conduct of the city, from asserting any interest in any part of the premises owned by the Fuel Company on account of any rights the city or the public may have acquired by reason of the extension of Superior street or Hill avenue to the shore line of the river as shown in the plat of Roy’s Addition.

By the Court. — Judgment reversed, with directions to the trial court to enter judgment for the Northwestern Fuel Company confirming its title to blocks 503 and 504, Sweetzer’s Division, free and clear of any interest or claim therein on the part of the city of Superior or the public by reason of the extension of Superior street or Hill avenue to the shore line of the St. Louis river or the Bay of Superior as shown in the plat of Roy’s Addition.