Pereles v. Magoon

78 Wis. 27 | Wis. | 1890

Cassoday, J.

The real controversy is as to the exact location of the line between lots 5 and 6 mentioned in the foregoing statement. The defendants own the north 31-| feet of lot 6, and the building situated thereon, and the real question is whether that building extends over the north line of that lot onto lot 5. The plaintiffs contend that it does for a distance of about one foot, while the defendants contend that it is wholly upon lot 6. To use the language of the learned counsel for the plaintiffs, “ the civil engineers and surveyors of both plaintiffs and defendants concur in measurements from landmarks on Martin street to the north line of lot 6. The distinction to be drawn between them is only in the apportionment made in the whole block. The plat shows that lots 2 to 11, inclusive, of block 68, are 60 feet frontage each on Jefferson street, while lot 1 is marked 7J¡. 6-10 feet. The whole distance, therefore, from Martin to Division street by the plat is 674 6-10 feet, and by the measurement of the engineers the actual distance now found in the block, as occupied, is 678 8-100 feet.” He contends that such excess of frontage, to wit, the 3 48-100 feet, belongs wholly to said lot 1, notwithstanding its dimensions purport to be specifically given upon the plat,'as well as all the other lots in the block. If his contention prevails, then it is conceded that the building of the defendants extends • over the line and about one foot onto lot 5. The defendants contend that such excess should be apportioned among the several lots fronting on Jefferson street, according to their respective frontage. Had the plat given the specific dimensions of each of the several lots fronting on Jefferson street except lot 1, and given no dimensions of that, then such absence of the dimensions of that lot would have evinced an intention that it should include whatever should be left after setting off the several lots of which the specific dimensions had thus been given, whether the same should be more or less; but where, as here, the specific dimensions of each and all of the several lots fronting on Jefferson street are given upon the plat, and there is no lot in the block of which the specific dimensions are not thus given, there seems to be no substantial reason why-such excess shotdd be given wholly to one lot merely because its dimensions, as given upon the plat, differ from those of the other lots.

This court has repeatedly held, in effect, that where a piece of land is subdivided into lots, and a plat of the subdivision recorded, and the actual aggregate frontage of such lots is less than is called for by the plat, the deficiency must be divided among the several lots in proportion to their respective frontage as indicated by the plat. Jones v. Kimble, 19 Wis. 429; O'Brien v. McCrane, 27 Wis. 446; Westphal v. Schultz, 48 Wis. 78. This is certainly not inconsistent with sec. 770, E. S. These cases have been cited approvingly in a recent case in Kansas, where it is held that, “ on a line of the same survey, and between remote corners, the whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from the defective survey in any part, but it must be presumed, in the absence of circumstances showing the contrary, that it arose from imperfect measurement of the whole line; and such variance must be distributed between the several subdivisions of the line in proportion to their respective lengths.” Miller v. Topeka Land Co. 24 Pac. Rep. (Kan.), 420. To the same effect are Moreland v. Page, 2 Iowa, 139; Newcomb v. Lewis, 31 Iowa, 488; Francois v. Maloney, 56 Ill. 399; Martz v. Williams, 67 Ill. 806. The same principle maintains where the actual measurements are in excess of the dimensions specifically designated upon the plat, as -in case of a deficiency. Miller v. Topeka Land Co., supra; Witham v. Cutts, 4 Me. 31; Wolfe v. Scarborough, 2 Ohio St. 361. In McAlpine v. Reicheneker, 27 Kan. 257, a tract of land had been partitioned by proceedings in the district court among several joint owners, and afterwards a question as to the correct location of the boundary lines among the several allottees arose, and it was, among other things, held that, “if no monuments were set, except theoretically on paper, the proper location of these monuments will be determined by prorating the distances as given in the records, according to the length of frontage of the several allotments. If the actual computed sum of the length of the several allotments, as given, exceeds the length of the tract partitioned, it will be construed that the decree means that, upon the hypothesis that the entire length of the whole tract is as stated, then the length of each assignment shall be as given; but if it be less, then the assignment of allotments must lose in like proportion.”

Upon authority as well as reason, the trial court was clearly right in holding that the excess named should be apportioned among the several lots fronting on Jefferson street in accordance with their respective frontage. It follows that no part of the building of the defendants extended on to the lot of the plaintiffs, nor beyond the boundary of lot 6. The complaint of the plaintiffs is for unlawfully withholding a portion of lot 5, but the facts disclose that neither the defendants nor their testator ever possessed, occupied, or claimed any portion of that lot, but only possessed, occupied, and claimed a portion of lot 6. This being so, it is obvious that tbe leases of portions of lot 5, in evidence, running to one or more of tbe remote grantors of tbe original defendant, are of no significance.

By the Court.— Tbe judgment of tbe circuit court is affirmed.

Taylor, J., dissents.