Daniels v. Wilson

27 Wis. 492 | Wis. | 1871

Cole, J.

For the purposes of this case we shall assume that the plat of New Lisbon which was offered in evidence was properly made out, certified, acknowledged and recorded according to the requirements of the statute. We shall also assume that the words “ Reserved Public Square ” were upon the plat when it was executed and acknowledged by the proprietors; although there is strong testimony in the case which tends to show they were not there at that time, but were subsequently placed there by some one without their knowledge or consent. But, assuming that these words were on the original plat when executed, we still think that they do not necessarily imply that it was the intention of the proprietors to dedicate ■ the square to the public for general purposes, and that it was competent to show that the object of the donation was for a particular public use. The plat was made and recorded on the 6th of September, 1859, upon which it is claimed that block two was designated and marked “Public Square,” or “Reserved Public Square.” On or about the 12th of October, 1859, the proprietors conveyed block two to the county of Juneau, with a proviso in the deed as follows : “ Provided, always, that this land is sold for county purposes so long as the county seat remains in New Lisbon, and if at any time the county seat is removed from said village, then this conveyance to be void and of no effect, and the land reverts to the said parties of the first part.” This deed was upon record when the proprietors conveyed lots nine and ten, in block five, to Lucinda Field, August 7, 1860, from whom the plaintiff derives title to those lots through sundry mesne conveyances. When the plat was made, September, 1859, jSTew Lisbon was the county seat of Juneau county, and the defendant Wilson, who was one of the original proprietors, testified that the land was platted “ for the purpose of giving block two to the county for the purpose of building the county buildings upon it.” And that it was the intention of the proprietors to dedicate block two, not to general public use as a public square, but to a special public use, namely, “ for the purpose of building the county buildings upon it,” is a fact conclusively established by the evidence in the cause. There was no act of the proprietors, after the recording of the plat and before executing and recording the deed to the county, inconsistent with the intent on their part to limit the dedication to this particular public use. And the question therefore is, Can they show this intention by parol evidence, and that the block was devoted to the use of the public for the erection of the county buildings thereon, and was not dedicated to the public generally ? We think it was competent to show this by parol testimony; and that this intention was conclusively proven on the trial cannot be denied.

If the words “ Reserved Public Square ” clearly and necessarily imported that the block was. dedicated to general public use, it would not be competent to change or vary the meaning of the words by parol testimony. But those words themselves do not sufficiently define and indicate the public purpose for which the block is reserved. Devoting the square to the use of the county as the place where the county buildings were to be erected, is certainly appropriating it to a public purpose. And while the block was thus occupied by the county buildings and for the use of the county, it would be a “ public square ” and the public would have the benefit of it. The use to which it was applied would be the one to which it was originally dedicated, and strictly consistent with the words on the plat, “ Reserved Public Square.” So that parol testimony offered to show the special public purpose to which the square was dedicated, is not contradicting or changing the words on the plat. It is merely showing the particular public use to which the ground in question was originally dedicated, and for what public purpose it must be applied. The words “ Reserved Public Square” are'indefinite in meaning, or certainly do not indicate whether the ground is to be appropriated to the use of the county for the erection of buildings thereon, or whether it is to be used solely for pleasure grounds and as a public square, with ornamental trees, walks, etc. And that parol testimony was admissible to show the object of the dedication, and the particular public use to which it was devoted by the proprietors, we have no doubt. See the cases of Westfall v. Hunt, 8 Ind. 174; Logansport v. Dunn, id. 378; Lee v. Lake, 14 Mich. 12, cited upon the brief of counsel for the defendants.

That there is no ground for holding that the defendants are estopped from showing the particular public use to which the square was dedicated, seems to us equally plain. For, as already observed, when the original proprietors conveyed lots nine and ten, in block five, to Lucinda Field, the deed to the county was on record, showing that the square had been conveyed to the county for county purposes, and that if at any time the county seat was removed from New Lisbon, then the title to the square was to revert to the original proprietors. This deed plainly shows that it was not their intention to dedicate the square to general public uses, but that it was devoted to special public purposes. While the county should use the square for its county buildings, so long it would remain a public square. When it ceased to be used for that purpose, and the county seat was removed elsewhere, then the title was to revert. It is difficult to conceive of anything the original proprietors could do better calculated to inform all. persons of the particular public purpose to which the square was dedicated, than the execution and recording of this deed made to the county.

Upon the whole case, we think the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.

By the Court. — So ordered