48 Wis. 245 | Wis. | 1880
The land which the plaintiff seeks to recover in this case, is a strip laid out and designated on the plat of the Tillage of Clark’s Mills as “ Eiver street.” The defendant owns lots in block 1, abutting on the north on this street. Both parties claim under conveyances from Stephen S. Clark, one of the original proprietors, who made the plat. On the part of the plaintiff it is said that the plat was not properly certified and acknowledged so as to entitle it to record, and therefore did not operate as a grant of the land to the public for a street, and that he took the same under his conveyance. Both the deeds under which the parties claim the premises refer to the village plat. The defendant’s deed conveys lots 1, 2, 3 and 4 in block 1, “ according to the Clark’s Mills village plat on record.” In the plaintiff’s conveyance' the second course and distance describing the land is to commence “ at the northwest corner of a piece of land heretofore deeded to Mai’y Carr; thence easterly, on the north line of said Carr land, to the northwest corner of lot 11, block 1, in the village of Clark’s Mills, on the south side of the Manitowoc river, 'about 22 rods; thence northerly on the west line of said block 1 to the northwest corner thereof, being 20 rods; thence easterly on-the north line of said block 1 about twenty rods, to the center of Main street; thence northerly,” etc.
The record states that the plaintiff, for the purpose of proving the locality of the premises described in the complaint, offered in evidence the record of the plat of the village of Clark’s Mills. Undoubtedly, under the decisions of this court, this plat could be resorted to for the purpose of identifying the land conveyed (Vilas v. Reynolds, 6 Wis., 214;, Simmons v. Johnson, 14 Wis., 524; Fleischfresser v. Schmidt, 41 Wis., 223); but in this case the plaintiff, in order to explain his deed and establish his title to the strip in question, introduced the record of the plat. Under these circumstances, the plaintiff himself having relied upon the record to establish his title, his proof being fatally defective without the record, the
Further, it appears by the village plat that a certain quantity of land was surveyed and divided into blocks by the proprietors, and that block 1 was subdivided into lots. There were likewise streets laid out and named, which were frilly described on the plat.
It does not appear that Mary street on the west and River street on the north of defendant’s lots were ever opened and used by the public as highways. But it is absolutely essential for the enjoyment of lots 2 and 8, that River and Mary .Streets should be open to the full extent of the block for passage-ways. Now upon the facts of this case we are disposed to adopt this rule, namely:. Where the owner of a tract of land, which is laid out into blocks and lots that are bounded on what are represented on an unrecorded or defective plat as streets, conveys lots', referring to the plat as containing the true description of the premises, thus making the plat
The cases of Ely v. Bates, 5 Wis., 467; Sanborn v. The C. & N. W. Railway Co., 16 Wis., 20; Weisbrod v. Same, 18 Wis., 35; S. C., 21 Wis., 602; Warden v. Blakley, 32 Wis., 690, illustrate with what liberality this court has applied the doctrine of dedication for public use as a highway in case of recorded plats which purport to show by lines and figures the location and width of streets. See also Fox v. The Union Sugar Refinery, 109 Mass., 292.
It is proper to remark that this case differs essentially in its fiyjts from Van Valkenburgh v. The City of Milwaukee, 30 Wis., 338; Emmons v. The Same, 32 Wis., 433, and Fleischfresser v. Schmidt, supra. In the two former cases, the contention was that there had been a dedication to the public use by virtue of plats which -were introduced in evidence; but this view was not sustained, for reasons stated in the opinions.
The learned circuit court held that the plaintiff was the owner of all of River street and entitled to the possession thereof. According to our construction of the plat and deed under which the defendant claims, this was incorrect. The defendant took to the center of River street opposite to his lots, and the judgment to that extent must be modified.
By the Court.- — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter a judgment in conformity to this opinion.