Wegge v. Madler

129 Wis. 412 | Wis. | 1906

Cassoday, O. T.

1. It will be observed that the description of the land conveyed to the plaintiff commenced at a point fifty feet east of the northwest corner of lot 1, whereas the description of the land conveyed to the defendant Madler commenced at the northwest corner of lot 1. Thus it appears that the northwest corner of the lot was to be the northwest comer of Madler's land, and that a point fifty feet east of that comer was to be the northwest corner of the plaintiff’s land. The important question in the case, therefore, is as to the location of the northwest corner of that lot. The defendants claim and the court held that the northwest corner of the lot was at the point of intersection of the south line of Ogden avenue and the east line of Yan Burén street. The plaintiff contends that the northwest corner of that lot must be understood to mean the point of intersection of the center line of Ogden avenue and the center line of Van Burén street. In

[The heavy lines show defendants’ claim as to the boundaries of the land conveyed by Kasten to the plaintiff. The dotted line indicates plaintiff’s claim as to the last course in the description in his deed.]

support of sucb contention counsel invoke tbe well-established' rule that the grantee of a lot in a recorded plat takes title to-' the center of an adjoining street, subject to the public easement. Ford v. C. & N. W. R. Co. 14 Wis. 609; Pettibone v. Hamilton, 40 Wis. 402; Norcross v. Griffiths, 65 Wis. 599, 606, 607, 27 N. W. 606; Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304; Brown v. Baraboo, 98 Wis. 273, 74 N. W. 223. And this is so even where the laud is described by metes and bounds, extending to the line of the street or highway, although without express reference to such street or highway. Id. The same is true where the lot or land described is bounded by a public street or highway. Gove v. White, 20 Wis, 425; Lins v. Seefeld, 126 Wis. 610, 105 N. W. 917, and cases there cited. But, in view of the fact that the owner of such lot or land has no right to the possession or occupancy of any portion of such public street or highway adjoining the same, it is not customary to mention such street or highway in making a conveyance of such lot or land. It was held by this court many years ago that the land within the recorded plat of any city or village, “owned and occupied” by the debtor as a homestead, was a quarter of an acre, exclusive of the public street upon which it abutted. Weisbrod v. Daenicke, 36 Wis. 73. This was put on the ground that “such occupation and use” by the owner of the homestead was “inconsistent with the public easement” in such street. The correctness of- such ruling is obvious. It is claimed that the contention of the plaintiff has been directly adjudicated in other-jurisdictions. The cases cited and seemingly relied upon, however, merely reiterate well-established rules of law repeatedly sanctioned by this court in cases already cited and many others which might be cited. Cox v. Freedley, 33 Pa. St. 124; Low v. Tibbetts, 72 Me. 92; Moody v. Palmer, 50 Cal. 31; Potter v. Boyce, 73 App. Div. 383, 77 N. Y. Supp. 24; Sweatman v. Bathrick, 17 S. Dak. 138, 95 N. W. 422.

At the time of making the contract with Kleist for the benefit of the plaintiff, Kasten owned parts of lots 1 and 2, having a frontage on Ogden avenue of a few inches more than 100 feet. In making that contract and the deed given to the plaintiff in pursuance thereof Kasten manifestly intended to convey and did convey to the plaintiff enough of the eastern portion of the lots then so owned by him to give a frontage of fifty feet on Ogden avenue. Tbe land so conveyed adjoined the strip of land belonging to Sonlander and mentioned in the foregoing statement. And by Kasten’s subsequent deed to Madhr he intended to convey and did convey the balance of said lots so owned by him, having a frontage on Ogden avenue of about fifty feet. The claim of the plaintiff that her west line ran in a northwesterly direction so as to give her a frontage of more than seventy-six feet on Ogden avenue, leaving less than twenty-four feet frontage on that avenue to be conveyed to Madhr, is, in our judgment, without foundation. As held by the supreme court of Indiana, the lot must be understood to mean the land independently of the street or avenue. Montgomery v. Hines, 134 Ind. 221, 33 N. E. 1100. The trial court properly held that the plaintiff had no cause of action.

2. Error is assigned because the court allowed the defendants Scheffer to tax a full bill of costs and disbursements. No objection is made to the allowance of costs and disbursements in favor of Madhr. He defended as purchaser from Hasten, who was brought into the case as defendant. Hasten died, and thereupon Mrs. Scheffer, as his sole heir at law, and her husband were brought into the case as defendants. Of course, it became necessary for them to defend or allow judgment to go against them by default. They appeared by a separate attorney ; and, being successful, we perceive no reason why they were not entitled to legitimate costs. Of course, the items of costs were not to be unnecessarily duplicated. Accordingly the trial court disallowed to the Scheffers all items that were | common to both issues. We perceive no error in such ruling.'

By the Gourt. — The judgment of the circuit court is affirmed.