Walterman v. Village of Norwalk

145 Wis. 663 | Wis. | 1911

The-f ollomiig opinion was filed January 31, 1911:

Mabshall, J.

Assuming, for the moment, that the person under whom respondent claims title by grant or license in writing, privileged appellant to place the building on his land within the boundaries of the street, and that respondent subsequently, as the fact is, with full knowledge of the situation, came to the ownership of the premises, it is very difficult, if not impossible, to perceive any efficient reason why the surrender of the mere private right, which is the only one involved in this case, is not binding on him. We know of no. law, written or unwritten, nor any .established public policy precluding a person from selling or giving away his mere private property right to the use of his premises within the boundaries of a street. If there be no incompetency in that regard, nor infirmity in our assumption, it seems that the learned trial court erred in rendering the judgment complained of.

In view of the foregoing we turn to respondent’s brief and argument in support of the judgment. The greater part thereof, as well as the opinion of the trial court, we must say, has little or nothing to do with the precise question involved; that of whether one may efficiently part with his mere private property right in lands as an abutting owner on a street, including the right to have the way unobstructed. We will refer briefly to the salient features of counsel’s logic. Most of the contentions, as will be seen, may be admitted without affecting the final result.

It is said that estoppel cannot operate to evade statutory requirements. There is no question of estoppel, vital to this case.

Again it is suggested: The release is only binding on the one who made it. Why so? If one can grant to another the right to make some use of his land, necessarily he can bind his successor in title if he chooses to and executes his will so as to charge such successor with notice of the incumbrance. What was the intent in this case? There can be no doubt about that. The language of the instrument, under which appellant claims, is about as free from ambiguity as could well be. The owner of the land at the time the privilege in question was given declared in the instrument executed to that end that it was on behalf of himself, his heirs, executors, and •assigns. It seems too clear for discussion that such language includes and is as binding on respondent, who is admitted to have bought with a full knowledge of the situation, as on the person who signed it.

One who buys a lot abutting on a street, it is said, is entitled to judicial remedies to vindicate his private right to have the way kept open and unobstructed. Certainly, in the same sense that one is entitled to such a remedy to vindicate any violated remedial property right. But if a person sees fit to sell or give away such right and executes his purpose, he no longer possesses the requisite thing for the remedy to act upon. There can be no violated right originating after it has been parted with.

Next it is suggested that the instrument under which appellant claims is not binding because the essential of consideration is wanting. There are at least two efficient difficulties in the way of that cutting any figure. Eirst, the instrument was formally executed under seal, and that imports a consideration sufficient to support it. Second, a written license by •one to another privileging the latter to use the former’s land for some purpose, after having been acted upon by the former -.so that a subsequent loss would be inflicted upon him by its withdrawal, is irrevocable. Mere privileges which are revocable after having been acted upon, are, in this jurisdiction, •confined to oral licenses. Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030; Huber v. Stark, 124 Wis. 359, 102 N. W. 12. Moreover, the use in the instrument of the words, “re-mise, release, and forever discharge,” etc., indicates pretty clearly an intention to give something more than a mere license; to grant an easement in tbe land. Courts elsewhere have, so far as language would reasonably permit, construed instruments, formally executed under seal though not containing technical words of grant, as having been so intended when necessary to effect the manifest purpose. Adee v. Nassau E. R. Co. 65 App. Div. 529, 72 N. Y. Supp. 992. The drastic rule in New York was thus softened, which makes any mere license by a landowner to another to enjoy some privilege to use his premises, whether in writing or not, revocable at pleasure.

Next it is said an agreement respecting the maintenance of a public nuisance is void. Granted, but this action concerns private rights only.

Next it is contended that the doctrine of estoppel is not applicable to public rights. As said before, the doctripe of estoppel is not vital to this case. This may be taken as a sufficient answer to several contentions on the subject of estoppel.

Some other suggestions are made in the brief on the part of respondent which do not seem to call for more than passing recognition. No principle is invoked or judicial illustration of any principle which, when examined, impeaches or even questions, so far as we can see, the right of any one to grant away or part with by irrevocable license or lease his mere private rights, as was done in this case, and burden his property so that it will pass thus burdened to his vendee who takes with notice.

The learned circuit judge seems to have placed great reliance on authority that mere acquiescence in the creation of an obstruction in a street will not estop an abutting owner from successfully invoking the court to secure an abatement. That may be, and yet the abutter have no private right of action, especially in equity, where the obstruction is on his own land and was erected under a license or grant in writing. It seems it was thought that the principle that one cannot make .a binding contract as to judicial proceedings involving the public as a party interested, applies in plaintiff’s favor. We ■do not perceive any such connection. The public was in no way prejudiced by the contractual transition of the mere property right. Had no contract with reference to the matter been made and an action been brought to vindicate the private right, the public would not, in any sense, have been a party to the action so as to preclude plaintiff from contractually disposing of the action as he might see fit. There could be no moral turpitude in such a matter as in the instances found in the books illustrative of the principle invoked,— ■such as a champertous contract, an agreement not to make any defense in a divorce action, and the like. Moreover, the contract here had no reference to an action pending or impending, or threatened or proposed. We apprehend that if a person should malee a contract, which would be binding under ■ordinary circumstances, privileging another to- locate a weighing scales or a fruit or news stand on his property within the boundaries of a street, he could not in face thereof successfully prosecute such other for trespassing upon his premises. A person’s mere property right in the street is his to enjoy or part with as freely as any other such right.

The trial judge evidently relied on Amestoy v. Electric R. T. Co. 95 Cal. 311, 30 Pac. 550, and was misled thereby. That was an action to recover the promised compensation for not prosecuting defendant for an unlawful obstruction of the street. The judgment below went in favor of defendant for insufficiency of the complaint. It was affirmed upon appeal solely upon the ground that the pleading failed to show plaintiff had such special interest as to render him competent to sue the defendant for a private wrong, and, therefore, the case was to be viewed upon the theory that the agreement was not to sue to vindicate the public right and that such an agreement is against public policy. Inferentially, the court held that if the pleading disclosed that plaintiff contracted with reference to his mere private right as an abutter on the street the suit would be maintainable. That must be so, it seems, in case of an executed contract, and especially must the doors of equity be closed against a person who seeks to use its jurisdiction to enable him to successfully repudiate his having surrendered or burdened his mere private right.

By the Court. — The judgment is reversed, and the cause remanded with directions to dismiss the complaint with costs.

Siebeckeb and TimxiN, JJ., dissent.

A motion for a rehearing was denied April 5, 1911.