Gilman v. City of Milwaukee, 31 Wis. 563

Gilman v. City of Milwaukee

31 Wis. 563 | Wis. | 1872

Cole, J.

The counsel for the plaintiff, in his brief, fairly states the real and only question arising in this case, which is, whether the city of Milwaukee has the authority under its charter to lease land situate within the corporate limits for the use of a public street in any case ? . If it has, the demurrer to the complaint was improperly sustained.

The charter confers upon the municipal corporation “the general powers possessed by municipal corporations at common law,” and, among other express grants, authorizes the city to “ lease, purchase and hold real and personal estate sufficient for the convenience of the inhabitants thereof.” Section 21, ch. 10 of the charter. The charter also confers ample authority upon the city to acquire land for streets, alleys, and public grounds, through the exercise of the right of eminent domain. Ch. 6.

Now, in respect to the first specific grant above cited, it is claimed and insisted that it clearly authorizes the city to purchase or lease real estate for the convenience of its inhabitants, and therefore, if the convenience of the inhabitants would be promoted by the leasing of land for the use of a public street, the city authorities have the right and power to lease ground *568for that purpose. It is said it might be necessary, in some emergency, to secure tbe temporary right of way around some obstacle in a street, which is being removed; or to open communication between two points by a temporary route while a permanent street or bridge on another route is being built or made passable; .orthe business of the city might demand the opening of a thoroughfare before the dilatory proceedings for condemning land could be taken; and therefore, in these and like cases, it is essential that the city have the right to lease or purchase grounds for the use of a public street temporarily, if not permanently.

It seems to us that there is great force in this view of the matter, and that it is not extending the above provision beyond its just limits to say that it authorizes the city to lease grounds within the corporate limits for the use of a public street. See the cases of Rains v. The City of Oshkosh, 14 Wis., 372; Town of Beaver Dam v. Frings, 17 id., 398; and Kneeland v. Gilman, 24 id., 40. It is readily perceived that occasions might arise which would render it absolutely necessary for the' city authorities to exercise such a power, and acquire land for the use of a street by lease or purchase. The counsel for the city contends that the lease set forth in the complaint is nudum pactum, because, he says, the city has no power to take land for a public street by demise. Such a thing as a public highway held under a demise, he says, is unknown in the law. The fundamental idea of a public street, doubtless, is a way that all the public have the right to use for the purpose of travel and passage ; and in order to secure these ends, the fee or the absolute use must be in the public. The premises demised in the present case were not a part of a public street in any such sense. For here the fee remained in the plaintiff, and the only right the public acquired in the land was the right to use it temporarily for a street. At the expiration of the lease the landlord had the right to resume possession of his property, and to put an end to the passage of the public over it. Ordinarily, when a highway is once *569opened and established, it remains a highway until changed or discontinued by legal authority. ' But here the free and uninterrupted use would terminate when the city should surrender the lease and restore the possession to the owner. So that, in fact, while the city and public at large might use the demised premises as a part of the public street, for the purpose of passage, yet they were not a part of the street, since the rights of the plaintiff over the land became absolute at the expiration of the lease. And this shows that while the premises might be used temporarily for the purposes of a highway, they never really became a part of the street, and remain to this moment private property. The principles applicable to ordinary highways do not apply, any more than they would if the city itself had owned the lots and had permitted the public to use them for the purpose of passage. . And therefore the question, as it seems to us, is not whether a public highway can be held under a demise, but whether the city could lease lots for the use of the public to travel over in any casé and upon any emergency. And we are inclined to hold that the city has that power, and that in executing the lease in suit the city authorities did not act ultra vires, as contended by the city counsel.

It appears from the complaint that the lease in question was 'for the term Of one year from the 23d day of February, 1866. It is alleged that at the expiration of said term the city did not quit and deliver up to the plaintiff the possession of the premises, but continues to hold over and use and occupy the same; and the plaintiff elects to consider the city his tenant from year to year upon the terms of the lease. Now it is said the lease should be strictly construed, and held to be not binding beyond the term demised. But we think- the rule in ordinary cases should apply. The city might easily have notified the plaintiff that it did not wish to rent the premises for a longer term, and that he was at liberty to resume possession at the expiration of the year. As it did not do so, but continued to use and occupy *570the premises, we see no ground for saying that it is exonerated from the payment of the rent.

It follows from these views that the order of the county court sustaining the demurrer to the complaint must be reversed, and the cause remanded for further proceedings according to law

Mr. Justice Lyoh is of the opinion that the defendant has no power under its charter to lease land for the purposes of a street or public highway, but can only obtain the same for such purposes by an exercise of the right of eminent domain in the manner prescribed by law. He therefore dissents from the views of the majority of the court, and thinks that the order appealed from should be affirmed.

By the Court.— Order reversed, and cause remanded for further proceedings according to law.