139 Wis. 163 | Wis. | 1909
It is plain from the allegations of tbe petition tbat tbe petitioner seeks to vacate part of a public street in tbe city of Superior under tbe provisions of secs. 2265, 2266, Stats. (1898). These statutes provide for tbe vacation of plats and not tbe vacation of streets, and tbe main question is-whether they authorize tbe maintenance of tbe case made by tbe petition. Sec. 2265 provides, in effect, tbat tbe circuit courts may, upon application of tbe proprietor or proprietors-of any recorded plat of land made under tbe provisions of any law of this state or upon application of tbe proprietor or proprietors of any part of any plat or of any lot therein, alter or vacate such plat or part thereof, and further provides that-such application shall be made to tbe circuit court of the-county in which tbe plat is situated and bow tbe notice shall be given; and sec. 2266 provides tbat upon proof of noticetbe court shall bear tbe parties interested and determine the-petition, and may in its discretion vacate such plat or any part thereof and enter judgment accordingly, and tbat when only a part of a plat shall be vacated may also direct tbat the-title to such portions of tbe streets of such plat as shall be-vacated shall be vested in tbe owners of tbe lots or land abutting on tbe street or portions of streets so vacated from tbe line of the respective lots to tbe center of such streets in-such proportions as shall be determined by tbe court; and tbat tbe judgment, together with tbe plat, if only a part of the-plat shall have been vacated, showing tbe parts so vacated, shall be recorded in tbe office of tbe register of deeds.
It is insisted by counsel for respondents tbat tbe circuit court has no power to vacate streets, this being a matter purelv legislative and vested in tbe municipality, and tbat the-circuit court under tbe constitution, being purely a judicial court, is not authorized to exercise legislative power of any;
It is not denied but that power is conferred by statute upon the city of Superior to vacate streets in whole or in part, but it is insisted that this power is not exclusive, and that under the statute (secs. 2265 and 2266) above referred to power is also conferred upon the court. These sections of the statute do not purport to authorize the vacation of streets, but merely the vacation of plats. A plat might be vacated and the streets legally laid out and dedicated to the public remain, so far at least as the rights acquired by the public and abutting owners are concerned. True, the statute provides that when a part of a plat shall be vacated the court may by its judgment direct that the title to such portions of the streets of the plat as shall be vacated shall be vested in the owners of the lots or land abutting. It is manifest that this provision is designed merely to follow the vacation and clear the property of the proprietors from the dedication impressed upon it by the recording of the plat so far as the proprietors are concerned, but does not purport to adjust rights acquired, if any, under the plat by the public or third parties. It may well be that the abutting owners upon Lamborn avenue who appeared and objected to the jurisdiction of the court had a property interest in the street which they could not be deprived of without compensation. Johnson v. Lonstorf, 128 Wis. 17, 107 N. W. 459. The statute on its face or by any reasonable construction of its language does not give the right to vacate streets in whole or' in part. It simply authorizes the vacation of plats or parts thereof and provides for no compensation. It does not purport to.interfere with or divest rights acquired under the plat either by the public or by private parties. As appears from
1 Counsel for appellant relies upon Michigan decisions holding that power under a statute somewhat similar to ours gives the circuit court concurrent jurisdiction with the municipality to vacate streets. The Michigan decisions and some others referred to by appellant appear to support in some degree the contention of appellant, although it is said by the Michigan court that the construction given to the statute is anomalous, because the power to vacate streets is generally confided to municipal authorities, whose action in such cases is discretionary. Detroit R. E. I. Co. v. Wayne Circuit Judge, 137 Mich. 108, 100 N. W. 271. But, whatever the rule in Michigan or in other states may be, we think, under the provisions of the charter of the city of Superior and the statutes of this state vesting in the municipality power to vacate streets, secs. 2265, 2266, Stats. (1898), merely authorize the vacation of plats and not the vacation of streets. Subd. 30, sec. 35, ch. 124, Laws of 1891, being charter of the city of Superior; secs. 904, 927, Stats. (1898) ; Brandt v. Milwaukee, 69 Wis. 386, 34 N. W. 246. Counsel seeks to distinguish the Brandt Case under the language of the Milwaukee charter provision that the common council shall have authority, “anything in the general law of the state to the contrary notwithstanding,” to widen, straighten, and vacate streets. Ch. 184, Laws of 1874. While the Superior charter does not contain this identical provision, it is plain from its terms as well as other statutory provisions relating to municipalities that the power to vacate streets in the city of Superior was given exclusively to the council, and that no authority is conferred upon the courts by secs. 2265, 2266, Stats. (1898), which merely provide for vacation of
We conclude, therefore, that the general statute (secs. 2265 and 2266) must be held to apply, as its terms import, to the vacation of plats and not to the vacation of streets, and that the vacation of streets in the city of Superior is vested exclusively in the common council. The proceeding in question being to vacate a part of a street, the circuit court was without jurisdiction and the petition was properly dismissed.
Nothing in this opinion is intended to deny the circuit court power to vacate streets which merely appear on the plat but have not been accepted.
By the Court. — The order appealed from is affirmed.
