Kimball v. City of Kenosha

| Wis. | Jun 15, 1856

By the Court,

Smith, J.

The great practical importance of this case, has induced the court to require an unusual labor of argument on the part of counsel, and it is needless to say that it has received all the consideration which we have been able to give it. It remains now only to state briefly the conclusions to which we have arrived.

The authorities to which reference has been made, as bearing upon the case, are numerous, and by no means uniform, hence an attempt to review them on this occasion, would require great labor, and would result in but little practical benefit.

The declaration is an action on the case for obstructing the plaintiff’s right of private way, setting forth at length, the facts from which he avers this right of private way to have accrued to him, and the means by which the defendant is charged with having obstructed the same. These facts inform us that about the 30th day of October, 1838, David Crosit, William Bullen and Charles Durkee, then proprietors of adjoining tracts of land lying in Eacine, (now) Kenosha 'county, laid them out in town lots, surveyed and mapped them in lots, blocks, streets, &c., naming the tracts of land thus plotted “ the 'village of South-port,” now known as the city'of Kenosha. Among the blocks thus marked on the said map (which was duly acknowledged and recorded in pursuance of the then existing statute) was one .numbered forty-five, which was divided into three lots, numbered numerically in their order. Said lot three, in block forty-five, was bounded on one side by a street called Maiden Lane, on another side by South street, and on another side by Exchange’ street. November 5th, 1838,' Crosit, who theretofore was the owner of said lot three, together with his wife, conveyed the same by deed, according to the plot so made, to the plaintiff, under which the plaintiff went into possession, and has so remained ever since. February 9th, 1841, said village was incorporated by act of the territorial legislature. Afterwards, by an act of the legislature, approved January 11th, 1844, the trustees of Southport were authorized to discontinue said Exchange street, and on the 17th day of January, 1844, the said trustees did, by ordinance, discontinue and vacate the same as a public street on the west side of said block forty-five, and for the length of 111 feet on the west and northwest of said lot three. On the 20th day of December, 1850, Volnfey French and wife conveyed to the city of. Kenosha a portion of said Exchange street so discontinued, west and in front, adjoining said lot three (French deriving title through mesne conveyances from Crosit, the grantor of tbe plaintiff), wbo, by its officers and agents, afterwards erected thereon a certain fixture (an engine-house), and still keep and maintain the same.

The plaintiff claims that by virtue of his deed from Crosit and wife, he acquired a right of way in ánd over said Exchange street, and that his private right of way in and over said Exchange street, continued after, and notwithstanding the discontinuance of said street as a public way, independent of, and distinct from the public right, as appurtenant to the land which he purchased from Crosit, described by reference to the recorded plot or map aforesaid.

To the declaration of the plaintiff the defendant interposed a demurrer, which was sustained by the court below, and judgment was entered for the defendant.

The view which we have taken of this case, and of the rights of the respective parties involved, renders it unnecessary to discuss some of the causes of demurrer assigned. The whole case depends upon the questions: 1. Did the plaintiff acquire any interest in the strip of land designated on said plot as Exchange street, by virtue of his deed from Crosit and wife, and if any, what interest did he thus acquire? and 2. Does the plaintiff’s declaration properly state his right, and the injury committed by the defendant ?

All the facts well pleaded in the plaintiff’s declaration are admitted by the demurrer. He has properly set out the original proprietorship by Crosit of lot three; the survey, plotting and recording of the village plot of Southport; the conveyance of said lot three to himself by Crosit and wife; and its boundaries upon certain streets, one of which is Exchange street; the discontinuance of said street by the corporate authorities of the village under special authority conferred by the legislature; and the erection of the fixture (the engine-house), and the maintaining of the same by the defendant.

It is obvious, therefore, that the inquiry is very considerably narrowed. Has the plaintiff properly stated his right and the injury thereto, as both are manifested by his count ? We think not. It does not appear that he took by his deed a private right of way in and over Exchange street, distinct from, and independent of, the public right of way. It is not denied that such a right may be conveyed by similar conveyances of town lots, in cases where no other means of access exist; nor is it affirmed, in exclusion of the right of the public authority to extinguish the private, with the public right of way, by vacating the street. It is possible, .perhaps, that such a case may arise, and when it does, it will be met and disposed of; 'but under our view of the legal rights of the parties, in such cases, it will not be very likely to Recome a matter of serious litigation.

The statute in force at the time when the plot of the village of Southport was made, was that of Michigan, differing only in one respect from our own now in force, and from a proper construction of which are the rights of the parties to be ascertained and determined. Section 2 of chapter 41 of the Revised Statutes (substantially like the statute of Michigan, under which the plot was made) provides as follows:

“ All lots intended for sale shall be numbered in progressive numbers, or by the squares in which they are situated, and their precise length and width shall be stated on said plot or map ; and out lots shall not exceed ten acres in size, and shall in like manner be surveyed and numbered, and their precise length and width stated on the plot or map, together with any streets, alleys or roads which shall divide or border on the same.”

Section 5 of the same act provides as follows:

' “ When the plot or map shall have been made out and certified, acknowledged and recorded as required by this act, every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on said map, shall be deemed in law and in equity a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes a general warranty against such donor or donors, their' heirs and representatives, to the said donee or donees, grantee or grantees, for his, her or their use, for the uses and purposes therein named, expressed and intended, and no other use or purpose whatever; and the lands intended to he for streets, alleys, ways, commons, or other ‘public uses, in any toivn or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes se forth and expressed or intended

Were it not for this statute, the deed of Crosit would have conveyed to the plaintiff the fee of the land to the centre of the' street, subject to the public easement. This is the uniform doctrine in regard to roads and streets, or lands bounded thereon, in 'the country, and in villages. 11 Barb. S. C. B., 414-451; 24 Wend. 451; 13 Conn. Rep. 23; 4 Day, 328; 2 Wend. 473; 1 Comst. 103, and cases there cited. Southport was an unincorporated village at the time of the conveyance by Crosit to the plaintiff, and the common law prevailed, except so far as it was modified by the statute then in force as above recited. The effect of this statute was, to pass a trust'estate in the land designated as streets, to the corporate authorities, or rather, as the Michigan statute provided, to the county commissioners. But the fee, if it can be so called, was a .qualified one. The estate so conveyed was a trust estate, to be held for a particular, specified use, and no other. This estate, by the statute, vested upon the recording of the plot, so that the proprietor was inhibited from resuming, or, rather, from otherwise disposing of the estate or use of the land thus designated as streets on the plot so recorded. But no one can suppose that the corporate authorities did thereby acquire such an interest or estate in the lands so designated as streets, as to enable them to divert the same from the use declared by the statute. These corporate authorities, from the time of recording the plot, took the qualified estate prescribed by the statute, and held the same for the use therein specified, for. the benefit of all those who should purchase lots, from time to time, as well as for the public generally.

But though the corporate authorities of the town took the estate in trust, for the specified use of the public and the lot owners, it cannot be admitted that the right of eminent domain in the state, or in the municipal corporation to which the same might be delegated, was thereby at all impaired. The proper authority acting in the name and power of the state, could at any time abandon such trust, by vacating the street, taking the private interests and estates therein upon making compensation, the same as in the laying out and establishing a new street. In this way the public easement could be abandoned, and the private right extinguished. The land, discharged from the public easement, and the trusts to which it had been subjected, would revert to tbe original proprietor, or bis grantee or grantees. The public authorities haying extinguished the trust created by the act of recording the plot, were divested of all estate -in ■ the premises, for they never had any other, and the parties would be left in the same position as that of the owners of land upon a highway that had been discontinued by the proper authority.' (See authorities before cited.)

The chief difficulty in the way of this course of procedure is, the question, whether it is competent for the corporate authorities to absolve themselves from the trust created by the act of recording the plot and the statute in relation thereto. But it seems that this power necessarily results from their power to lay out, establish, alter or vacate public streets, which power is as ample as the state itself could confer, indeed scarcely limitód at all save by the prescriptions of the constitution».

There can be no real difference . between a conveyance of a lot or'block numbered three, which is in fact bounded by a street, or in the conveyance of black-acre bounding, it by a street or highway named. Unless the street or road is expressly excluded, the grantee takes to the centre. It is unnecessary to citó authorities to this proposition. - The dividing of land into lots, blocks and streets, the lots and blocks numbered, and all bounded by streets in fact, and described in the deeds of their conveyance by number, cannot, by any means, be regarded as an express exclusion of the streets on which they abut, and without which the lots would’be comparatively useless. So far from the streets being expressly excluded in conveyances of such kind, there is the strongest possible inaplication that they were intended to be included, because the price, of the lots depends upon their location in reference to the streets, and the vendor receives a consideration, not only for the precise amount of land described in the lot, but also for that used for the • street, on which the lot '"is bounded. Admitting, therefore, that the corporate authorities may discontinue the public use of the street, as it appears to us, must of necessity be the case, subject to constitutional restrictions, the plainest principles of equity, as well as the long settled principles of the common law, require that the street thus vacated for the public use, should revert to the adjoining land owners.

We are aware that these views may, in some degree, conflict with the reasoning of the New York courts, in regard to streets in New York city, in reference to a statute somewhat analogous to our own. But we are unacquainted with all the facts and circumstances which may have dictated the policy of their law, or guided the minds of their jurists to conclusions, doubtless satisfactory to them and beneficial as well as just to their state and people, but we have been unable to discover anything in the rule, or the reason of the rule, established for New York city, approaching the character of universal law, or authoritative precedent, or which would render it either a wise or safe one to be adopted in this state. On the contrary, the rule which we have been constrained to adopt, or rather to follow, in this case, we believe to be, not only in strict conformity with well established existing law, sanctioned by the experience and authority of ages, but the only one that will secure the just rights of the public and of individuals, and close the door to an endless train of litigation.

It will be seen that the plaintiff has not properly stated his right, the injury to which, he complains of, and the demurrer should be sustained.

It is not intended to decide, or to intimate, that these principles apply to public squares, &c., but only to streets, alleys and the like.

We have not stopped to quote authorities for the several positions here assumed, as they rest mainly upon elementary principles, conceded by all, a departure from which only requires cases and precedents to sustain it.

Sufficient, however, has been referred to (if indeed any authority were at this day requisite), to establish these principles in relation to lands in the country and in villages, and neither the statute of Michigan, the statute of the territory, nor the existing statutes of this state, essentially vary or change the application of the same principle to town or city lots. The public authorities have all the control over the streets which the statute grants to them, so long as the streets are continued as such ; and when they cease to be such, are vacated or abandoned, the rights of the public therein are extinguished, and those of the individual owner may be resumed.

It may not be improper to remark, that the New York decisions have bad, as they justly should have, very great weight •, but it should also be observed that the statutes of that state are peculiar, as may also have been the circumstances, interests and public policy necessary to be established by them.

It would seem, moreover, as an indication of the intent of the legislature, or at least as indicative of legislative construction, that we are not alone in this view of the proper construction to be put upon the statutes before referred to.

It was our design to enlarge considerably on this opinion, and to elaborate more at length the conclusions to which we have arrived. To do so, would be to swell the opinion to an unusual compass. .We cannot but feel that injustice has been done to the, very able, consecutive and logical arguments with which we have been favored on both sides of this important question. But we have tried to reach the principles involved, and settle them so far as we have been able. We shall content ourselves with the citation of the recent act of the legislature bearing upon this subject.

The legislative construction to which we refer is found in the act entitled, “An act to amend chapter forty-one of the Eevised Statutes,” and is as follows:

“ That chapter forty-one of the Eeyised Statutes be, and the • same is hereby amended, by adding to the said chapter, as section fifteen, as follows, to wit: If the owner or owners of any addition to any city or town, not within the municipal jurisdiction of any such city or town, shall be desirous of altering or vacating the saíne, or any part thereof, in addition to the notice prescribed in section 13, they shall also give two weeks’ previous notice, in writing, to such town or city, of the time and place at which such application shall be made to the court, and upon producing satisfactory evidence to the court, that such notices have been given, the court shall proceed to hear and determine such petition, and may alter or vacate such addition or any part thereof, and by decree direct that the title to such portions of such addition as may be vacated, be vested in the owner or owners of the lots or lands abutting on, or adjoining the portions so vacated, to each, from the line of his or their lot of land, to the centre of the portion so vacated, in such proportions as may be determined by the court; and that the decree so made, together with a plot of tbe same shall have been altered, shall be recorded in the office of the register of deeds for the proper county, in the same manner as is provided in the said chapter for recording plots.”

The provisions of this amendatory act, would seem to imply, that upon the vacating or discontinuing of a street, under the circumstances analogous to those involved in this case, the present owners of the lots abutting on the streets so vacated should take the land to the centre of the street.

We will not undertake to say, nor are we called upon to do so, what would, or should have been the rule of decision, had our statute given the unqualified fee of the land of the streets to the corporate authorities, unaffected or unrestricted by any trusts whatsoever. We consider the rights of all the parties concerned, as' their acts and the operative statutes at the time fixed them, modified only so far as a subsequent, and not materially different statute, may have affected them.

The judgment of the court below, sustaining the demurrer, must be affirmed, as the plaintiff has not, in his declaration, properly set out his right or title, nor the nature of the injury of which he complains.