36 Wis. 73 | Wis. | 1874
The defendant occupies two lots in the city of Oshkosh. The .lots are bounded on the south by a street which is sixty-four feet wide, and extend back to an alley which is twenty feet wide. Both lots are included in one inclosure ; are now occupied by the defendant as a homestead, and were so occupied by him at the time of the execution sale which is the foundation of the plaintiff’s title. The lots within the inclosure, extending from the north line of the street to the south line of the alley, contain less than one-fourth of an acre. When the lots are surveyed from the center of the street to the center of the alley, they exceed in area one-fourth of an acre by a strip eighteen feet wide from front to rear, that is, from the center of the street to the center of the alley, eighteen feet front on the street and extending back to the alley the same width. The sheriff sold on an execution against the defendant, a strip off the east side of the inclosure eighteen feet wide front, and running back north to the center of the alley, which strip is the premises in dispute, and for the recovery of which this action is brought. The single and only question involved in the ease is, How much land does the statute secure to the debtor within a city for a homestead ?
In this state the law is well settled that the owner of the adjoining lot takes to the center of the street. That is, the fee is in him to the center of the street, subject to the public easement. About this rule there is no controversy. And this being the case, the question is, In computing or ascertaining the quantity of land which the law exempts, should the land within public streets and alleys be included or excluded from the measurement ? This question, we think, is quite satisfactorily determined by the statute itself upon this subject. The statute provides that a homestead, consisting of a quantity of land not exceeding in amount one-fourth of an acre, being within a recorded town plot, or city or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the state, shall not be subject to forced sale on
These considerations, and others which might be suggested, are deemed sufficient to show that the statute in regard to homestead exemption should receive no such construction as the one given it by the court below. The circuit court in effect held, that if the defendant had one-fourth of an acre, including
These rules are decisive of this case.
By the Churt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.