227 Wis. 228 | Wis. | 1938
By a deed dated May 15, 1924, the plaintiffs became the owners of land described therein as—
“Lots Nos. Seven (7) and Eight (8) in Block No. Seven (7) of the City of Two Rivers, laid out upon the East fraction of the Northeast Quarter (NE J4) of Section No. One (1) in Township No. Nineteen (19) North of Range Twenty-four (24) East.”
The original plat of the city of Two Rivers was surveyed in June, 1835, and duly recorded in the office of the register of deeds. That plat, as appears from the portion thereof herewith reproduced by solid lines (on a reduced scale) shows that when plaintiffs’ lots 7 and 8 in block 7 were originally platted, the shore line of Lake Michigan cut diagonally across said lots in a northeasterly and southwesterly direction, so that at the time of the platting thereof they constituted a tract one hundred twenty feet wide in an east and west direction with a western boundary almost one hundred fifty feet long, and an eastern boundary approximately ninety feet long. That plat further shows lot 1 and adjacent lots in block 1, which were owned by Albert A. Pilón, deceased; also a tract on the east side of plaintiffs’ lot 8 in block 7, which is bounded by dash lines, and was conveyed to the defendants Lonzo and wife in 1934; and also shows the westerly part of a tract extending to the east and north of the Lonzos’ land, which is owned by the defendants Schneider. The plat further shows that Emmet street, as surveyed, intersected at a right angle the north line of Sixteenth street, which, if it had been then extended across Emmet street,
In about 1927 the city, after obtaining permission from the plaintiffs, ran a storm sewer through the sea wall to discharge surface water at the intersection onto the beach and into the lake. That sewer was buried two and one-half to four feet up to a point four or five feet east of the wall, where its end was exposed. Upon sand filling in that end in 1928, the city extended the sewer one hundred twenty feet eastward without requesting further permission from the plaintiffs. In making that extension the city excavated considerable sand, which began to- blow over plaintiffs’ land. Upon their complaining about that condition, the city, in order to keep the sand from blowing, spread clay, in 1932, over an area of one hundred feet east of Emmet street and south of plaintiffs’ house; and in 1934, spread cinders over that area and twenty feet further to the east. The city never extended the curbing or made any other improvements east of the intersection of Emmet and Sixteenth streets. If the latter had been extended east of Emmet street it would have been but a dead-end street, ending at Lake Michigan without connecting with any other street.
The surface between the lines of Sixteenth street, if extended east of Emmet street, was almost impassable except for foot travel because it was sandy and. humpy, with small
About a year and a half prior to the commencement of ’ this action, the defendants Lonzo began building a house on their land east of plaintiffs’ lot 8, and hauled their building materials over the cindered area east of Emmet street along the line of Sixteenth street, if extended. Thereupon the plaintiffs erected a fence across that portion of that area, and upon their refusal to remove it when ordered by the city, the latter removed it. The plaintiffs also objected to the dig-
Upon the trial, as well as on this appeal, the principal ultimate and controlling questions are: (1) In what proportions and by what division lines of coterminous owners of land abutting on the original shore line is the new shore line and the reliction, as the result of the retrocession of the water between those shore lines, to be apportioned to each abutting proprietor, including the city of Two Rivers by reason of its rights at the original shore line along Emmet and Sixteenth streets, as platted in 1835; and (2) has there been such adverse and continuous use and travel over the area east of the intersection of Sixteenth and Emmet streets as to establish a highway by public user, or has there been adverse possession thereof under color of title by the defendants Lonzo and their predecessors in title for more than ten years prior to the commencement of this action.
The trial court, in connection with finding that the plaintiffs acquired title by a warranty deed dated May 15, 1924, to lots numbered 7 and 8 in “Block No. Seven (7) of the City of Two Rivers,” etc., further stated .in its findings' — ■
“The southern boundary of said lots being the northern boundary line of 16th Street produced eastward from Em-met Street to the range line between Ranges 24 and 25 East, in said Township.”
And the court also found that for many years before plaintiffs so acquired title to those lots, and for over twenty years before commencing this action, “that portion of 16th Street located between the east line of Emmet Street and the aforementioned Range line . . . had been used by the public as a public highway, and that by reason of such use of such highway by the public” the plaintiffs as owners of those lots
As those findings are contrary to the clear preponderance and great weight of the evidence, in view of the facts established thereby, as stated above, neither the court’s findings nor its conclusions thereon can be sustained. The description in the deed conveying their land to the plaintiffs reads:
“Lots Nos. Seven (7) and Eight (8) in Block No. Seven (7) of the City of Two Rivers, laid out upon the East fraction of the Northeast Quarter (NE }4) of Section No. One (1) in Township No. Nineteen (19) North of Range Twenty-four (24) East.”
Nothing therein stated defines or constitutes, expressly or by implication, the northern line of Sixteenth street produced eastward from Emmet street as the southern boundary of lots 7 and 8, as the trial court found. On the contrary, at the time of that deed the plat of the city of Two Rivers, surveyed in June, 1835, and- on record in the office of the register of deeds since shortly thereafter, showed lots 7 and 8 extending southward to the water line of Lake Michigan. Consequently, by virtue of their deed, describing lots which, as platted, were bounded by Lake Michigan, the plaintiffs became riparian owners, and as such owners are entitled to all land extending to the natural shore line as it was in 1835, and as it changed from time to time thereafter by reason of accretions formed upon or against that land, or by reason of the uncovering of portions of the adjoining bed of the lake by the gradual retrocession of the water therefrom. Boorman v. Sunnuchs, 42 Wis. 233, 242; Diedrich v. N. W. U. Ry. Co. 42 Wis. 248; Roberts v. Rust, 104 Wis. 619, 621, 80 N. W. 914; Doemel v. Jantz, 180 Wis. 225, 193 N. W. 393.
The court found and concluded, in relation to the defendants Lonzo, that they and their predecessors have had open, notorious, and adverse possession, under color of title, for over ten years prior to the commencement of this action, of a tract sixty feet wide along the east side of the section line (which is the east line of plaintiffs’ lot 8) from a point one hundred fifty feet south of Seventeenth street to the present water line; that by the Lonzos’ offer and the acceptance thereof by the city of Two> Rivers, on the trial, the west thirty feet of the portion of that tract, which lies south of
Those findings in relation to the possession and rights of the defendants are also contrary to the clear preponderance and great weight of the evidence and therefore cannot be sustained. Likewise the court’s conclusions of law in respect to riparia’nTights, by reason of the ownership or interest of those defendants in land bounded by the original shore line, to land uncovered between that line and the present shore by the gradual retrocession of the lake water, cannot be sustained, for reasons stated hereinafter, excepting as to such portions of the uncovered land as are between division lines drawn at right angles from the present shore line to the points where the division lines of coterminous owners of land in which the city had an interest, intersected the original shore line. To that uncovered land there is applicable the rule approved in Hathaway v. Milwaukee, 132 Wis. 249, 251, 111 N. W. 570, 112 N. W. 455, in which the court said:
“In dividing the accretion and the new shore the court evidently followed the rule of apportioning to each abutting proprietor such proportion of the new shore line as his ownership of the original shore line bore to the whole line on which the accretion abuts, and dividing the area to be apportioned by connecting the points where division lines of coterminous owners intersect the original shore line and the corresponding points on the new shore line by straight lines. This process of apportionment is well recognized as a proper one to follow unless it results in such inequalities as to make it inequitable. Northern P. L. Co. v. Bigelow, 84 Wis. 157, 54 N. W. 496; Thomas v. A., S. & I. R. L. R. Co. 122 Wis. 519, 100 N. W. 993; Batchelder v. Keniston, 51 N. H. 496.”
Nothing is said in that statement as to the direction in which the new division lines are to be drawn, either in relation to each other or to the division lines of coterminous
It follows that the reliction in dispute herein must be apportioned, as the plaintiffs contend, by straight division lines drawn at a right angle to the present shore line from the points at which the division lines of coterminous owners intersected the original shore line. Under an apportionment made in that manner, the plaintiffs are entitled to a tract, the division lines of which will be approximately as indicated by the dash lines “A” and “B” on the copy (Exhibit 2) of the original plat printed in connection with this opinion; and they are entitled to judgment quieting their title to a tract so apportioned. The reliction immediately to the west of that tract along the shore line, as shown on the original plat, at the intersection of Emmet and Sixteenth streets, and along the latter street west of that intersection, up to a straight line drawn at a right angle to the present shore line from the point at which the south line of Sixteenth street west of Emmet street intersected the original shore line, must be apportioned to the city of Two Rivers by reason of riparian rights attaching in favor of a municipality to accretions or reliction along a public highway. Pewaukee v. Savoy, 103 Wis. 271, 278, 79 N. W. 436. And by reason of the city’s motion to review, the city is entitled to have judgment to that effect, and also quieting its title to that portion of the reliction. The other defendants are respectively entitled to so much of the reliction as is adjacent to their respective holdings of the upland between lines drawn at a right angle to the present shore line from'the point at which the original shore line was intersected by boundary lines of their respec
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with the opinion.