Kneeland v. Van Valkenburgh

| Wis. | Jan 15, 1879

Lyon, J.

If the deed of 1850, executed by the plaintiff to Mrs. Todd, conveyed to her the land in controversy, the plaintiff cannot recover in this action; for it is essential to a recovery that he show title in himself. The counterclaim avers, and the reply admits, the execution of that deed, and, if it conveyed the land claimed, it is obvious that the reply contains no defense to the counterclaim, and that the demurrer was properly sustained. Hence the statement in the brief of the learned counsel for the appellant, that “ the substantial question is, whether appellant’s deed to Todd conveyed the premises in suit,” is entirely accurate.

The rule by which this question must be solved, is thus stated in Pettibone v. Hamilton, 40 Wis., 402" court="Wis." date_filed="1876-08-15" href="https://app.midpage.ai/document/pettibone-v-hamilton-6602095?utm_source=webapp" opinion_id="6602095">40 Wis., 402: “In Kimball v. The City of Kenosha, 4 Wis., 321" court="Wis." date_filed="1856-06-15" href="https://app.midpage.ai/document/kimball-v-city-of-kenosha-6597331?utm_source=webapp" opinion_id="6597331">4 Wis., 321, decided in 1855, it was held that the grantee of a lot bounded by a public street in a recorded town plat, whether the lot is designated in the conveyance thereof by its proper number on the plat, or by some other appropriate description, takes to the center of such street, subject only to the public easement, unless the street is expressly excluded from the grant by something appearing upon the plat or by the terms of the conveyance. This doctrine has since been repeatedly reaffirmed by this court, and is now too firmly established to be disputed or drawn in question. Goodall v. Milwaukee, 5 Wis., 32" court="Wis." date_filed="1856-07-01" href="https://app.midpage.ai/document/goodall-v-city-of-milwaukee-6597400?utm_source=webapp" opinion_id="6597400">5 Wis., 32; Milwaukee v. Mil. & Beloit R. R. Co., 7 id., 85; Ford v. Chicago & N. W. Railway Co., 14 id., 609; Weisbrod v. The Same, 18 id., 36; S. C., 20 id., 419; S. C., 21 id., 602.” (p. 410.)

The deed to Mrs. Todd does not convey a given lot by its number, but it conveys to her a portion of a given lot by appropriate description, that is, by metes and bounds. It is true that the designated boundary lines of the premises conveyed are the lines between lot one and the abutting streets, as those lines would usually be marked on a map or plat, but there is not in the terms of the deed any express exclusion of the land between those lines and the centers of the streets. The rule above stated will not permit an inference of intention to exclude the streets from the mere fact that the boundary lines specified in the grant are outside the limits of the streets. It was substantially so ruled in Pettibone v. Hamilton, supra. We also think there is sufficient in the deed to Mrs. Todd to show that the plaintiff did not intend to limit the grant to the outer lines of the streets. It is stated therein that the land conveyed “ is known as the east part of lot number one,” etc. Counsel for plaintiff argues that the use of the words “ known as ” in the description destroys its significance as manifesting an intention to convey the east part of the lot. ¥e think otherwise. A conveyance of a lot in a given plat, “ known as lot one,” or of a parcel of land “ known as the FT. W. i of section one,” in a specified township and range, without further description, would undoubtedly convey the whole of the lot or quarter-section, even, though the same included a larger area than it was generally supposed to include. The better opinion seems to be, that these words, unexplained by the context, are a mere formula to which no restrictive effect can be given when they so occur in a grant. Hence we think the deed to Mrs. Todd describes the premises conveyed to her as the east part of lot one; and that part of the lot necessarily extends to the center of the streets. The conveyance was also made expressly “ subject to all legal highways.” Unless it extends the grant into the abutting streets, it does not appear that there were any highways upon the premises conveyed.

For the purposes of this appeal we must assume, under the pleadings, that Bi.ddle_ street and Lake street are public highways, and our judgment is based on that hypothesis.

"We conclude that Mrs. Todd took to the center of the abutting streets under her deed from the plaintiff, and hence, that this aetion cannot be maintained under the present pleadings.

By the Gowrt.— Order affirmed.

Ryajst, G. J. took no part.

A motion for a rehearing was denied.