Milwaukee Boiler Co. v. Wadhams Oil & Grease Co.

126 Wis. 32 | Wis. | 1905

SiebecKee, J.

It is contended by tbe appellant that tbe clear preponderance of tbe evidence shows tbat tbe alley, as located by tbe original survey laying out this subdivision of tbe city of Milwaukee, was 22.41 feet farther south than tbe •court located it upon tbe trial of this case. In support of this contention reliance is mainly placed upon a resurvey of tbe ground platted by tbe witness Reinertsen, tbe map of tbe original survey recorded in tbe register of deeds’ office, and tbe occupation of some of tbe adjoining property and street in this subdivision. It is an undisputed fact tbat no monuments set by tbe original surveyor have ever been found, nor does it appear tbat stakes or ancient fences or other structures have ■ever been located according to original monuments. In this state of tbe proof but slight weight can be given to tbe location of any structures as evidence of tbe true lines of streets, alleys, blocks, or lots. Nor are tbe resurveys of convincing weight, in view of tbe fact tbat they were necessarily made ■without any original monuments or other positive evidence of tbe true lines. It is true tbe surveyors called as witnesses in tbe case gave tbe result of the surveys made by them, showing tbe location of tbe lot, block, and street lines of the ground platted. Tbe unreliability of this evidence is manifest by tbe wide divergence in tbe results of their efforts to locate tbe original lines of the property involved in this controversy and tbe admitted fact tbat tbe boundaries of tbe lots and blocks thus made do not correspond with tbe street and lot lines as located on tbe recorded plat of the original survey. It is apparent tbat, if the courses and distances as given on tbe recorded map of tbe original survey are followed, it will be impossible to locate a street eighty feet wide in front of blocks '09 and 10 and to locate tbe block and lot lines as indicated on tbe plats within tbe limits of tbe ground actually occupied.

Tbe court found tbat an alley bad been laid out and platted by tbe plat of L. W. Weeks in 1846, and tbat an alley as now located “bad been actually located, laid out, and improved by the city of Milwaukee and used as an alley by tbe city” and by tbe public, as a public highway, since the year 1874, and that this has been recognized as its actual location by plaintiff' and its grantors as owners of the lot abutting on the south. This finding of fact is abundantly sustained by the evidence, showing the city’s occupation of it from that time by the placing of a large drain or sewer in the twenty-foot strip located by it as the platted alley running eastward, from the street on Hie west of the blocks in question, to the Milwaukee river, and by the use of this strip by the public in passing from the street to the river. It also appears that the persons in possession of the lots bordering on both sides of this strip, so taken by the city as an alley, have recognized and used it in connection with their possession and occupation of the adjoining lots since about the year 1885. To the same effect is the further finding that the street in front of the blocks in question has been actually occupied and improved by the city and used by the public as an eighty-foot wide street, and that the abutting lotowners have established-their lines in harmony therewith. In view of these facts there is slight, if any, room for controversy upon the question of the actual location of the alley since 1874. These acts of the public, the city, and the-adjoining landowners clearly establish an alley by prescription at the place it is found to- exist by the" court on this trial. Chippewa Falls v. Hopkins, 109 Wis. 611, 615, 85 N. W. 553; Lemon v. Hayden, 13 Wis. 159; Wyman v. State, 13 Wis. 663; Hanson v. Taylor, 23 Wis. 547; Stricker v. Reedsburg, 101 Wis. 457, 77 N. W. 897; Bartlett v. Beardmore, 77 Wis. 356, 46 N. W. 494.

It is clear that the obstructions, as found by the court, are a 'public nuisance which will interfere with the use of the-, alley by the public, and if continued they will materially interfere with the plaintiff’s use of' the alley, as an abutting lot-owner, in carrying on any business to which the premises may be devoted. Such an injury to plaintiff’s right has been held to constitute a special damage and to entitle him to the-remedy by ini unction for tlie abatement of the nuisance. Pettibone v. Hamilton, 40 Wis. 402; Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969; Krueger v. Wis. Tel. Co. 106 Wis. 96, 81 N. W. 1041; Williams v. Smith, 22 Wis. 594.

Objection is made to the judgment entered, upon the ground that it not only enjoins defendant from obstructing the strip used as an alley, but that it also enjoins defendant from maintaining a fence as a trespass on plaintiff’s lot 1. The language employed in the judgment, stating plaintiff’s measure ■of relief, is somewhat indefinite, and in itself does not indicate with exactness the relief awarded; but, when applied to the issues presented by the pleadings and actually litigated upon the trial, it is apparent that the only relief the decree awards is an abatement of the nuisance in the alley and the removal of the structures placed thereon by the defendant, which constitute the nuisance. We think this a proper interpretation of the language employed, and the decree should be ••so understood.

By the Court. — Judgment affirmed.