85 Wis. 280 | Wis. | 1893
Lots 6, 7, and 8, in block 19, in the village (now city) of Plymouth, in Sheboygan county, are bounded on the north by Mill street, and on the east by Stafford street, and run lengthwise north and south, and lie side by side, with lot 6 on Stafford street. Before J une, 1883, all these lots belonged to William Schwartz, one of the defend
Thereupon the plaintiff brought suit against the defendant Laack, under sec. 3180, R. S., as amended, to require him to open the alley and remove the said obstruction as an abatement of the private nuisance, and for damages, and recovered in the action. On an appeal from said judgment this court reversed it, on the ground that the plaintiff’s said deed gave him no right to the alley, and that the exception in said deed is, in effect, a reservation of the alley to the grantor, Schwartz, and that in an action at law the plaintiff had no remedy; but this court reversed the judgment without prejudice to the right of the plaintiff to bring an action in equity to reform said deed so as to convey to the plaintiff such right of way over said south twelve feet of the lots to Stafford street. Fischer v. Laack, 76 Wis. 313.
The circuit court found that it was the intention of the parties to the deed of lot 8 that said deed should convey to the plaintiff a perpetual right of way over the south twelve feet of all of, said lots to Stafford street, and that, prior to the purchase of the east half of lot 7 and of lot 6 by the defendant Laaek, both the plaintiff and said Behnke were in constant use of said alley, and frequently worked and improved it, and at all times claimed a right of way over it. The court further found that, when the defendant Laaek purchased lot 6 and the east half of lot 7, he knew that the plaintiff and Behnke had purchased from Schwartz the right to the perpetual use of said alley, and well knew the existence of said alley, and the improvements thereof by the plaintiff and Behnke, and that the plaintiff claimed the right to the perpetual use of said alley. The court rendered judgment according to the demand of the complaint, except as to damages, and requiring the defendant Laaek to remove said building and obstruction off and away from said alley within sixty days after service of a copy of the judgment.
The evidence shows that the ground on the south ends of • the lots is low and swampy, and that the plaintiff, Schwartz, and Behnke filled this twelve feet for an alley, and graded it about two feet above the ground adjoining,
The plaintiff seems to have made a very clear case for the reformation of his deed from Schwartz, as found and adjudged by the circuit court. Sawyer v. Hanson, 48 Wis. 611; Grossbach v. Brown, 72 Wis. 458; Kyle v. Fehley, 81 Wis. 67, and other cases cited in respondent’s brief. The defendant Laaok took his deed from Schwartz with notice that his grantor had already sold and parted with the south twelve feet of the lots conveyed to him to be perpetually
By the Court.— That part of the judgment of the circuit court that reforms the deed of Schwartz and wife to the defendant Laaoh of lot 6 and the east half of lot 7, in block 19, as aforesaid, is reversed, without costs, and the judgment of the circuit court with this exception is affirmed, with costs.