Weisbrod v. Chicago & North-Western Railway Co.

| Wis. | Jan 15, 1867

Dixon, C. J.

The facts appear somewhat different, but I do not see that they materially affect or change the question of estoppel as decided by this court on the first appeal. 18 Wis., 41. That decision was made upon the supposition that the plat of Miller’s addition was properly acknowledged so as to entitle it to be recorded. It now appears that it was not. But this does not seem to me to affect the right of the plaintiff to hold to the center of the street. The only difference is, that in the one case the street became a public highway by grant, and in the other by dedication. This is settled by Gardiner v. Tisdale, 2 Wis., 153" court="Wis." date_filed="1853-12-15" href="https://app.midpage.ai/document/gardiner-v-tisdale-6597034?utm_source=webapp" opinion_id="6597034">2 Wis., 153. The street existed the same as it now exists, in August, 1849, when the plaintiff purchased. Its width was indicated by the boundaries of the adjoining lots, which boundaries were easily ascertained by the stakes. The stakes on the west side of the street were set by Miller. It is not pretended that there was anything on Miller’s plat, or any stakes, monuments or marks in the street itself, to indicate that the whole intervening space was not dedicated to the public as a highway. Miller showed the plaintiff his lots on the west side of the street, before the plaintiff purchased on the east, and pointed out to him the width of the street in front of them. The plaintiff bought without any knowledge of Miller’s title or claim to the strip of land in the center of the street. Under these circumstances, the doctrine of the former opinion seems to me fully applicable. Where land is divided into lots, blocks and streets, as in our cities and villages, it may be said to be the universal understanding that the purchaser of a lot takes to the center of the street unless the contrary is expressly declared by the deed or shown by the plat. It is so “ because the price of the lots depends upon their location in reference to the streets, and the vendor receives a consideration, not only for the precise amount of land described in the lot, but also for that used for the street on which the lot is bounded.” Kimball v. Kenosha, 4 Wis., 431. I do not doubt that there may be an estoppel in such cases, nor that the owner of lots on one side of a street may preclude himself from setting up title to the land beyond the center of the street by permitting the owner of lots on the opposite side to sell to purchasers for a valuable consideration, without notice. This principle is recognized and strongly exemplified in two decisions in the court of appeals of New York I refer to Bissell v. Central R. R. Co., 23 N.Y., 61" court="NY" date_filed="1861-03-05" href="https://app.midpage.ai/document/bissell-v--the-new-york-central-rr-company-3582342?utm_source=webapp" opinion_id="3582342">23 N. Y., 61, and Tallmadge v. East River Bank, 26 N.Y., 105" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/tallmadge-v--the-east-river-bank-3632198?utm_source=webapp" opinion_id="3632198">26 N. Y., 105. Before ratification by the public authorities, Broad street was a public street as to the grantees of the adjoining lots. After such ratification, it became a public street to all intents and purposes, the same as if Miller’s plat had been properly authenticated by his acknowledgment, and he can no more be permitted to reclaim it in the one case than in the other.

The admissibility of the book of records of deeds transcribed from Brown county depends upon section five of the act approved February 18, 1842, Laws of 1842, p. 75. The language of the section is not very clear, but,' as I understand it, the certificate spoken of is the certificate of the register attached to a copy of a deed taken from the book of transcripts. I do not understand that the book of transcripts .was itself to be certified. The possession of the book by the register of deeds in his office was sufficient evidence of its authenticity. If a certified copy from the book is legal evidence, then I think it very reasonable that the book itself should be, though not expressly made so by the words of the statute. People v. Cady, 25 Wend., 467. But if I am wrong as to the proper construction of the act of 1842, still I think the same conclusion follows under section 145, ch. 13, R. S.

The question whether an action of ejectment can be maintained in a case like this, was conclusively settled in Gardiner v. Tisdale, supra. It was there held that the original owner, or those claiming under him, of land dedicated to public use, might maintain ejectment against a permanent incumbrancer or occupier, inconsistent with, or repugnant to, the purpose of the dedication or grant. I see no error in the proceedings or judgment, and am of opinion that they should be affirmed.

By the Court. — Judgment affirmed.

DowneR, J., dissents as to the point of estoppel.