122 Wis. 396 | Wis. | 1904
The questions presented in the voluminous record include some which are necessarily preliminary to the principal question, which, as stated by plaintiff’s counsel, is as to where the lawful boundaries of Public avenue are located.
1. It is Conceded that Crane entered all the lands in controversy November 26, 1838, but that he did not get any patent therefor from the United States until May 9, 1842. The question recurs whether, upon obtaining and recording that patent, the deed which Crane had given to Kidder September 26,1839, and the deed which he had given to Kearney May 14, 1840, vested in the respective grantees therein named the title to the lands therein described. This question was answered in the affirmative by this court nearly fifty years ago. Dillingham v. Fisher, 5 Wis. 475, 478. In that case Pisher claimed title under the same deed from Crane to Kearney as here, and obtained judgment in the trial court, and the same was affirmed in this court. Id. 482. It was there held, in effect, that, although the strict legal title remained in the United States until the issuance of the patent, yet, as Crane had entered the land and paid his money and obtained the register’s certificate of purchase, the entire equitable title and interest vested in him, and the same passed by his deed to Kearney, in whom the legal title became vested by way of relation, immediately upon the patent being issued. The principle upon which that decision was based has frequently been recognized by this court. Cornelius v. Kessel, 58 Wis. 237, 16 N. W. 550; Paige v. Peters, 70 Wis. 178, 182, 35 N. W. 328; Spiess v. Neuberg, 71 Wis. 279, 283, 284, 37 N. W. 417. It is in harmony with the decisions of the supreme court of the United States. Wilcox v. Jackson, 13 Pet. 498, 517; Carter v. Buddy, 166 U. S. 493, 17 Sup. Ct. 640. The title to lot 1, block 46, as designated on Doolittle’s plat, which so became vested in Kearney, afterwards by mesne conveyances from him and by operation of law became vested in the plaintiff before the commencement of this
2. It becomes important to determine as to what right, title, or interest, if any, Kearney and Kidder, respectively, acquired by virtue of such deeds and patent to tbe space between blocks 46 and 47 as designated on tbe Doolittle plat. As indicated in tbe statement of facts, Crane and another caused tbe Doolittle plat to be made and recorded September 24, 1839 — two days prior to tbe deed to Kidder, and more than eight months prior to tbe deed to Kearney. Each of those deeds purported to convey certain lands as designated on tbe Doolittle map. About three months after tbe deed to Kearney, Crane and two others caused tbe Hopkins plat to be made and recorded as stated. May 18, 1854, tbis court held tbat those plats were both void as statutory dedications to tbe public of tbe “Public Landing” described therein for want of tbe requisite acknowledgment and certification thereof. Gardiner v. Tisdale, 2 Wis. 153, 185. Tbat was an action of ejectment commenced in November, 1852, to recover a part of tbe “Public Landing” described on such plats as being bounded on tbe south by block 59, on tbe east by Turtle street and Public avenue, on tbe north by block 46, and on tbe west by Rock river, as designated on tbe Doolittle plat, by virtue of a deed executed by Crane to Gardner September 2, 1852, more than ten years after tbe title became vested in Kidder and Kéamey, respectively, as mentioned. Tbe
“So, even where there is no acceptance on the part of the public, they will be regarded as ways, and will be kept open for the benefit of those who have purchased lots with reference to the location and existence of the streets and roads represented upon the maps or plats. And the right passing to the purchaser is not the mere right that he may Use the street, but that all persons may use it.” Elliott, Roads & S. (2d ed.) •§ 114
Numerous cases are cited in support of such propositions. We only mention a few, in which these was an absence of any statutory dedication: Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071; Bartlett v. Bangor, 67 Me. 460; Hurley v. Miss. & R. R. B. Co. 34 Minn. 143; Bissell v. N. Y. C. R. Co. 23 N. Y. 61; Carter v. Portland, 4 Oreg. 339; Meier v. P. C. R. Co. 16 Oreg. 500, 19 Pac. 610; McCall v. Davis, 56 Pa. St. 431; Transue v. Sell, 10 5 Pa. St. 604; Ferguson’s Appeal, 117 Pa. St. 426, 11 Atl. 885. Thus, in the Illinois case cited, it was held that:
“Where, after platting land, the owner sells, lots and blocks 'with reference to the streets therein described, both he and his grantees are estopped to deny the legal existence of such*410 streets, although there is not a sufficient statutory dedication, owing to the plat not being properly acknowledged. The right of abutting owners to have a public street remain open is not merely that they may use the same, but that all persons may use it as a public highway, free from all claim or interference of the original proprietor, or those claiming under him, inconsistent with such use.”
In the case cited from Maine it was held, in effect, that, where the owner of land sellg one or more lots by reference to a plan made by him, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can interrupt or destroy. In the Minnesota case cited it was held that the “dedication of streets and public places, properly designated upon the plat of a survey of a tract of land into lots and blocks, is to be deemed complete upon conveyances being made of lots with reference to such plat, though it be not properly certified for record.” In the New York case cited it was held that:
“As between grantor and grantee the conveyance of a lot bounded upon a street in a city carries the land to the center of the street. ... So held where the conveyance contained no reference to the street by name, but the lot was described by its number, ■ ‘according to an allotment and survey made by E. J./ upon whose map the lot was represented as abutting upon a street, and the depth of the lot was stated by figures which would not include any part of the street.”
In the first of the Pennsylvania ’cases cited it was held that:
“When an owner of ground lays it off into town lots, with streets,- etc., for their use, and sells lots accordingly, it is a dedication of these ways to the use of the purchasers. The plan exhibited is evidence of the existence and location of the streets, and when the deed refers to the plan it is made part of the description, and has the same effect as if copied into the deed.”
The last case cited is to the same effect, and it also held that the dedication of the street to the use of the purchaser as a public way was complete, although the street had not yet
“When the owner of the land laid out into blocks and lots bounded by what are represented, on an unrecorded or defective plat, as streets, conveys a lot, referring in the deed to the plat as containing the true description of the premises, his grantee takes, as against the grantor and his assigns, to the center of the street upon which the lot abuts. So held in a case where the deed referred to the plat as ‘on record,’ and it was in fact recorded, though not entitled to record.”
-So in a later case it was held that:
“If the owner of land plats the same into lots and streets and sells a lot designated upon such plat for a consideration affected by its location upon a street, also marked upon such plat, he is estopped, although the plat is not recorded, from depriving the purchaser of the use of such street.” Donohoo v. Murray, 62 Wis. 100, 22 N. W. 167.
See, also, Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304. Mr. Dillon states the rule thus:
“While a mere survey of land, by the owner, into lots, defining streets, squares, etc., will not, without a sale, amount to a dedication, yet a sale of lots with reference to such plat, or describing lots as bounded by streets, will, as between the grantor and grantee, amount to an immediate and irrevocable dedication of the streets, binding upon both vendor and ven-dee.” 2 Dillon, Mun. Oorp. (4th ed.) § 640.
“A distinguishing difference between a statutory and common-law dedication is said to be that the former operates by way of a grant, and the latter by way of an estoppel in pais, rather than by grant.” Elliott, Boads & S. (2d ed.) § 115; 2 Dillon, Mun. Corp. (4th ed.) § 628; Fulton v. Mehrenfeld, 8 Ohio St. 440; Pittsburg, C., C. & St. L. R. Co. v. Crown Point, 150 Ind. 536, 550, 50 N. E. 741.
3. The question recurs whether Kearney or Kidder or those claiming under them respectively, lost or parted with any of the rights so acquired by them in Public avenue. One of the principal claims that such rights were lost or parted with is based upon deeds given by the original owner, Crane, subsequently to the time when such titles became vested in Kidder and Kearney, respectively, as mentioned. One of such deeds was given by Crane to Gardner September 2, 1852 — more than ten years after such title became so vested in Kidder and Kearney. That deed only purported to convey land in Public Landing, as marked on the Doolittle plat, all of which was west of Turtle street and west of Public avenue, as marked upon that plat. The mere fact that this court held in the Gardiner Gase (Gardiner v. Tisdale, 2 Wis. 153) that, if the proofs should be sufficient to warrant the same, ejectment might be maintained against a mere trespasser, or one claiming no right or title in the part of the landing there in question except naked' possession, is no ground for holding that those who derived such title from and under Kidder to the lands abutting upon Publie avenue
4. It is claimed that the right, title, and interest which Kidder, and those claiming under him, acquired in the space between blocks 46 and 47 of the Doolittle plat, as indicated, were largely extinguished and narrowed by action of the public authorities. Reliance seems to be placed upon an order signed by the supervisors of the town of Beloit August 3, 1850, purporting to lay out a highway in Turtle street between block 47 and the Public Landing, and also a highway extending from Pleasant street west on Public avenue to the west line of Turtle street, and bounded on the south by the north line of block 47, and on the north by a line parallel therewith and one chain and eleven links therefrom, and declaring therein that the same was intended to be in conformity to the original survey made by Doolittle of Turtle street and Public avenue. Public avenue east of Pleasant street is described on the Doolittle plat as being one chain and eleven links in width, whereas west of Pleasant street there is thereon an open space, the east end of which is 74 feet wide and the west end thereof is 144| feet wide. That order was based upon a petition signed by L. G. Eisher and sixteen others, whose names are not of record or known. Assuming that such order, based upon such petition so signed, was effectual
“In order to make a dedication complete on the part of the public as well as the owner, and to charge the public corporation having jurisdiction over highways with the duty to repair the way, there must be an acceptance of the dedication by the publie or the proper local authorities. . . . Until there has been an acceptance, the public cannot be charged with the duty of repairing, nor is there any liability for injuries caused by the defective or unsafe condition of the way.” Elliott, Eoads & S. (2d ed.) § 150. See cases there cited.
In another section he says that:
“It may now be considered as the prevailing opinion that an acceptance may be implied from .a general and long-continued use by the public as of right.” Id. § 154.
In the opinion of the trial court it is stated, in effect, that the space between the two blocks “was used by the public for travel to its full width down to 1870, or over thirty years; and for the greater part of its width down to 1883, or over forty years.” The evidence seems to fully justify such statement. Such long-continued use by the public generally was certainly sufficient to justify an acceptance by the public of the dedication made by recording the Doolittle plat as of right.
We have already shown that the Doolittle plat and the conveyances according to the descriptions on that plat to Kidder and Kearney, respectively, was a complete dedication as a public highway of the space between blocks 46 and 47, irrevocable as against Kidder and Kearney and those claiming
5. This brings us to the question suggested by counsel, “Where are the lawful boundaries of Public avenue ?” The complaint alleges, in effect, that the south line of Public avenue,' between Turtle street and Pleasant street, as delineated on Pice’s map, is fourteen feet north of the north line of block 47 as located and shown on Doolittle’s plat and Hopkins’ map; and prays judgment, among other things, that the lawful boundaries of Public avenue between the premises of the several defendants and the plaintiff, as therein stated, “are as delineated upon and shown and located by said Rice’s map and notes of survey.” In their brief counsel for the. plaintiff go further, and claim that the trial court erroneously adopted as the south line of Public avenue “the irregular line indicated by the north side of old Rock River House and the old fence existing prior to October, 1841, which practically adopted” the line designated therefor in the city ordinance of September 5, 1870, already mentioned. Upon such basis counsel contend, in effect, that “the ultimate question” to be determined is whether thirty-eight and one half “feet shall be added to the width of the Doolittle block (47) at its west end” and eighteen feet shall be added thereto at its east end, “perforce of Ordinance 39, or of such fence and north side of old Rock River House.” In other words, the claim seems to be that such fences and buildings, as so located, extended north over what would be the south line of Public avenue by an accurate survey a distance of from eighteen to thirty-eight and one half feet. Such claims of the plaintiff are manifestly based upon the supposed inaccuracies of the Doolittle survey and plat, and the supposed inaccuracies of the Hopkins survey and map, and the accuracy of the Rice survey and plat and subsequent surveys. Rice made no attempt to locate or relocate the original lines of Public avenue as designated on the Doolittle plat. On the contrary, lie
“A plat which sets apart highways to the public is equivalent to a conveyance, and the easement conveyed is irrevocable. The lines as exhibited on the plat may control the explanatory notes. The extent of a dedication by map or plat is to be determined from a consideration of the whole instrument, since the chief object is to ascertain the intention of the donor. . . . The cardinal rule of construction is that which prevails respecting ordinary grants, and that is to discover and give effect to the intention of the party as manifested by his acts.” Elliott, Roads & S. (2d ed.) § 119.
Numerous cases are cited in support of such statements. Here we not only have the plat of block 47 and Public avenue, but conveyances of the lands as described on the plat. This court, after holding that courses and distances are to be controlled by fixed monuments, held long ago that:
“If no monuments, are mentioned or in existence, evidence of long-continued occupation, though beyond the given distances, is admissible. If the description is ambiguous or doubtful, parol evidence of the practical construction given*422 by tbe parties by acts of occupation or recognition of monuments or boundaries is admissible.” Racine v. J. I. Case Plow Co. 56 Wis. 539, 14 N. W. 599.
So it bas been beld that a finding fixing tbe line of a street is
“Sustained by evidence that tbe street was originally located on sucb line more tban thirty years ago, and bas been maintained tbereon ever since, although a recent survey tends to show that another line is tbe true one.” Koenigs v. Jung, 73 Wis. 178, 40 N. W. 801.
See, to tbe same effect, Racine v. Emerson, 85 Wis. 80, 55 N. W. 177; Madison v. Mayers, 97 Wis. 399, 410, 73 N. W. 43; Galesville v. Parker, 107 Wis. 363, 366, 367, 83 N. W. 646.
In this last case tbe plat was imperfect and contradictory. There were no landmarks or original stakes, except tbe quarter corner at tbe extremity of tbe plat, several blocks distant, unconnected by monument or description. Tbe width of some of tbe streets was not given, and tbe corners and distances were inconsistent with each other. And it was beld, in effect, that “tbe lines of ancient fences and long-continued occupation of adjacent lots and blocks in tbe same plat” bad “greater probative force tban mere measurements’ of courses and distances.” Tbe principles of law governing these adjudications are certainly applicable to tbe case at bar. Obviously, tbe trial court followed them in deciding this case.
6. Counsel for tbe plaintiff contend that tbe trial court erroneously adopted tbe line designated in Ordinance No. 39 as tbe north line of Public avenue. This is put upon two grounds: first, that the ordinance was void for noncompliance with tbe city charter; and,'secondly, if otherwise valid, it was an unlawful interference with tbe plaintiff’s land. It is enough to say that we have already shown that tbe plaintiff bad no right, title, or interest in any portion of block 50 on Rice’s plat, carved out of Public Landing and Public avenue,, upon which her claim is based, nor to any sucb interest in
By the Court. — The judgment of the circuit court is affirmed.