13 Wis. 692 | Wis. | 1861
By the Court,
The instructions of the circuit court, given upon the trial of this cause, appear to us to have been quite as favorable to the appellant as the facts and cir
This portion of the charge we think quite as favorable to the appellant as the facts of the case would justify. Indeed we have come to the conclusion that the true boundary between the lot owners on the east and west side of the bayou, is the east line of Eiver street. We have arrived at this conclusion in view of one or two considerations to which we will briefly allude.
At the time the plat was made and the blocks and lots on each side of the bayou, with Eiver street, were delineated on
It is quite true that the question as to the true boundary between the different lot owners on the island and main land, is not strictly raised by the instructions of the circuit court, and therefore it is not necesáary, perhaps, to decide it in this cause ; but still, since it was so fully discussed by the counsel for the respondent, and; we were given to understand that several cases were still pending where it might be necessary to consider it, we have felt at liberty thus to express an opinion upon it.
The counsel for the respondent forcibly pressed upon our attention several considerations which he thought required us to hold that the boundary between the lot owners on the island and those on the main land, was the center of River street. The main reason was, that the law of real estate loves certainty in boundary lines, and that the center of River street was the most certain call for lots upon each side of it. But we cannot perceive that a mathematical line through the center of the street would be any more certain than the east line thereof, the middle of the street being given. In analogy to the common law rule of construction, the center would be the natural boundary. But this case is a little peculiar in its circumstances, and if we should hold that the center of the street was the true boundary, it is very clear that lot owners on the west side thereof would have been cut off from the bayou, in the possible contingency that River street had been vacated, and the bayou kept open for the purposes of navigation. It seems the bayou has been entirely filled up, its waters having become injurious to the health of the citizens ; but probably the proprietors of the town as little expected this result, when they laid it out and gave deeds in the first instance, as they contemplated the discontinuance of River street itself Indeed, from the condition of the bayou in 1836, and some years thereafter, the
These observations are sufficient, we think, to dispose of all questions arising upon the charge of the court, and instructions given the jury, as well as the refusal to give the special instructions asked for on the part of the appellant, and we therefore shall not notice these instructions with any more particularity. We think the law of the case is laid down by the court more favorably to the appellant than in strict right he could insist upon, and hence he has no reason to complain. And we can discover no material error in the various rulings of the court as to the admission or exclusion of testimony on the trial.
The judgment of the circuit court is affirmed.