51 Wis. 526 | Wis. | 1881
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE
This complaint is to enjoin the city authorities from opening that part of Racine street between the two blocks now belonging to the plaintiff, and is predicated upon the following grounds: First, that there has never been any acceptance by the public, or on behalf or for the use of the public, of Racine street, and especially of this portion of it, until the plaintiff's right to the locus in quo had been acquired by an adverse possession of 20 years; second, that this portion of Racine street had been vacated by the city. The learned and eminent counsel and party plaintiff has furnished this court with a very able brief upon, and most ably argued, many questions which do not appear to be in the case as made by the complaint, such as the statute of limitations, nonuser, and equitable estoppel. But, as we view the case, they may as well be included with the ground stated in the complaint of adverse possession, as they are alike affected by the principle upon which such adverse possession fails to be the foundation of any right in the plaintiff. The *527
complaint fails to state the most important facts which constitute adverse possession, viz.: that the possession, though quiet, peaceable, and continuous, was adverse, or that the entry or possession was under color or claim of title. Whitney v. Powell, 1 Chand. 52; Edgerton v. Bird,
The first question presented is, had there ever been an acceptance, before the recent action of the city, of the dedication of this street, or this part of the street, by the public or on behalf of the public? Where such dedication by a recorded plat or otherwise is made by a private owner of the land, it may be that an acceptance of such dedication by the public, or a user by the public, or an acceptance by some competent public authority for and on behalf of the public, is necessary. But where the state, by authority of law, makes a city plat of its own land, and thereby dedicates the streets and other public grounds marked thereon to the public use, the same high public authority that makes the dedication, by the same act accepts it on behalf of the public. The dedication and its acceptance are in the same public act. The proposition is self-evident. This question disposed of, then all of the stated or assumed grounds of this action, except the vacation of this part of the street. Adverse possession, statutory limitation, non-user, and equitable estoppel, are disposed of by the assertion of one principle, sound in reason as well as in law, and supported by the best authority, viz.: Until the time arrives when any street or part of a street is required for actual public use, and when the public authorities may be properly called upon to open it for the public use, no mere non-user, of any length of time, will operate as an abandoment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public. This principle is fully recognized and applied in the two following cases, closely analogous in their facts to this case: Town of Derby v. Alling,
This principle, however, is associated with another one, equally reasonable and supported by the same authority, viz.: After such time arrives when the public use requires it, and the public authorities may be properly called upon to open a street or part of a street to the public use, then negligence and unreasonable delay in opening the same may work an abandonment of it by non-user. The questions of such public necessity, negligence, and delay, in any given case, are questions of fact, to be determined on evidence. In this case, there being no evidence on the subject, the authorities of the city of Racine must be presumed to have taken measures to open this part of Racine street as soon as there was a reasonable necessity for its public use, and as soon as they could properly be called upon to do so. The only remaining question is that of the alleged vacation of this part of Racine street by the ordinance of the city council of the city of Racine, passed April 5, 1869, and set out in the complaint. It is sufficient to say of this ordinance that the charter of said city provides that "no ordinance or legislative resolution passed by the city council shall be of any validity unless approved by the mayor within three days after the passage thereof." It is not pretended that this ordinance had such approval, and therefore it has no validity. The vacation of streets, when it may be supposed that private as well as public rights will be more or less affected by such vacation, is a high power vested in the city council of cities, and all the proceedings to that end must strictly comply with the law that confers it Kimball v. Kenosha,
The judgment of the circuit court is affirmed.
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