94 Wis. 300 | Wis. | 1896
Assuming, as appellant contends, that the recording of the plat of 1851, and the subsequent ratification
It is well settled that, though land be dedicated to the public use by a private owner, so as to vest the title in the donee for such use, until, in the judgment of the trustee, the premises are needed for such use, mere nonuser for any period of time will not operate as an abandonment of the property, so as to revest the title thereto in the donor. Reilly v. Racine, 51 Wis. 526; State v. Leaver, 62 Wis. 393; Chase v. Oshkosh, 81 Wis. 313. The title being once vested in the public, the corporation in which it is situated, and upon which devolves the duty to administer the trust, has a broad discretionary power respecting the time when the public interests require the actual enjoyment of the property, as intended by the donor. It can allow such donor, in the meantime, for some purposes at least, to use the property as his own. Neither nonuser by the public, nor such actual use by the donor, standing .alone, however long continued, will affect the status of the public right. Eowhere is this principle more thoroughly intrenched than in the jurisprudence of this state. We may go further and say that, if the title be once vested in the public under a dedication by a private owner, with or without acceptance by the donee, as circumstances may require, and the property is thereafter erroneously assessed and taxes collected thereon of the donor, that will not, of itself, necessarily affect the rights of the public. That is sustained by numerous well-oonsidered cases cited by appellant’s counsel: Rhodes v.
But, notwithstanding what has preceded, it is not an open question in this court that the conduct of a municipal corporation may be such that a change of its position will cause such injustice to those who have relied upon such conduct as to warrant the court in preventing such change by an application of the doctrine of equitable estoppel in pais. This subject was so exhaustively discussed in Paine Lumber Co. v. Oshkosh, 89 Wis. 449,— opinion by Mr. Justice Pieney,— that it is needless to go over the matter again at this time. It was there, in effect, held that, though a public corporation cannot alienate public streets and places, and mere lacbes on its part cannot defeat the public rights thereto, cases may arise where private rights have grown up so as to be in equity paramount to the public rights, and where the prevention of injustice requires the assertion of the doctrine of equitable estoppel in pais for the protection of such private rights.
The groundwork of the doctrine is that it would be a fraud in a party to assert what his previous course had denied, when, on the faith of such denial, others have acted. To prevent the injustice a change of position by such party would cause to such others, under such circumstances, where there is no adequate legal remedy, the doctrine of equitable estoppel comes in and does the work. That the equitable rule is applied as freely against the public as against private persons is not maintained, but that the courts may administer justice by its aid, even where that results in controlling the conduct of municipal corporations, when the facts are such, in the judgment of the court, as to demand it to prevent manifest injustice and wrong to private persons, is firmly established. A large number of cases are cited in Paine Lumber Co. v. Oshkosh, supra, where this prin
The plat of 1878, by which what was formerly known as “ Public Park,” with a small addition, was platted as Lawe’s Park; the tearing down of the rail fence about that time, and the construction of a new fence in its place, must be considered, we think, a distinct assertion of a private ownership of the property inconsistent with any public right thereto, and the commencement of possession adverse to the public. The taxing of the property thereafter as private property is a strong circumstance favoring such private ownership and abandonment, to be considered with all the other circumstances in determining whether Lawe was justified in treating it as so abandoned, and in incurring expense in taking care of and improving the same as discharged of any public right thereto. In Simplot v. Dubuque, 49 Iowa, 630, the court held that, where lands are granted to a city for public use, and are thereafter occupied by the donor adversely for a long period of time and taxed to him, under the doctrine of equitable estoppel such city cannot subsequently deny the right of such occupant thereto.
In Getchell v. Benedict, supra, a distinction is made between cases where the lands taxed are adversely occupied and where not. We do not go so far as to approve the doctrine of Simplot v. Dubuque, supra, that the mere circumstances of adverse possession for a considerable length of time and taxation to the adverse occupant and payment of such taxes by him are sufficient to create an estoppel against the municipality. They are evidently important circumstances to be considered with the other facts in the case. The adoption of the second plat by the act incorporating the city of Kaukauna in 1885, the requirement made by such city of Lawe
By the Gourt.— Judgment affirmed.
