79 Wis. 524 | Wis. | 1891
This is an action of ejectment, brought by the plaintiff to recover forty-six ninety-sixths, undivided, of the east one-half of the block on which the Exposition building is located in the city of Milwaukee. It appears that on October 8, 1835, Byron Kilbourn, who was then the sole owner of the premises, made and recorded a plat of this and of other tracts of land belonging to him, laying the same out in blocks and lots, -with streets and alleys, as and for the town of Milwaukee, on the west side of Milwaukee river.' On the plat were blocks marked “ Public; ” and in the certificate signed by Mr. Kilbourn, on the plat, it is stated that “ the four vacant spaces marked ‘ Public ’ are of the dimensions represented by the lines on the plat,
The plat was executed under a statute of Michigan territory, which territory embraced what is now the state of Wisconsin, and which statute, in effect, provided that town plats to be recorded should particularly set forth and describe all public grounds within such town by its boundaries, courses, and extent, and whether it be intended for streets, alleys, commons, or for public uses, and all the lots intended for sale by progressive numbers, and their precise length and width; and the plat was required to be acknowledged before a justice of the peace, a justice of the county court of the proper county where the town lay, or before a judge of the supreme court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded. And it was enacted that such plats should be deemed a sufficient conveyance to vest the fee of the said parcels of land as therein expressed, named, or intended to be for public uses in the county in which such town lay, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever. Revised Laws of Mich-' igan, 1827, p. 278, sec. 2, of an act to provide for the recording of town plats, approved April 12, 1827. When a plat was executed and acknowledged in the manner and
After the plat was recorded, and in December, 1835, Mr. Kilbourn and wife conveyed to the father of the plaintiff the interest in the premises which is claimed in this action, such interest having become vested in plaintiff, by deeds which were offered in evidence.
The learned trial judge found as facts, among other things, that in 1861 a large building was erected by certain residents of Milwaukee, covering nearly the south half of the square, which building, two yeárs thereafter, began to be used as a public market-house, in which stalls or apartments were let or rented to gardeners and dealers in meats and groceries, and that the building continued to be so used as a public market until the year 1880 or 1881, when the building was torn down, and was replaced by the Exposition building, owned by the Milwaukee Industrial Exposition Association, a defendant herein. The circuit judge further found in effect that in 1815 a corporation was formed, called the “West Side Market Association,” and that in August, 1816, the city of Milwaukee leased to said corporation all the public square in controversy, including the building, for five years, at a nominal rent; further, that in January, 1880, certain named business men, residents of Milwaukee, formed a private corporation wTith a capital stock of $150,000, called The Milwaukee Industnúal Exposition Association for the purpose of constructing and maintaining an exposition for industrial and other objects in Milwaukee. It likewise appears from the finding that the city leased to this association the public square or ground west of block 52, to be used only for an industrial exposition, and for such other purposes of a public nature as the directors of the association might see fit, for a nominal rent, for the term of fifty years from the date of the lease.
Some of these findings were excepted to by the defendants, but from the meager evidence set forth in the bill of exceptions we assume they were supported by the testimony. There is really no disagreement as to the essential facts of the case. The controversy is as to the law applicable to them.
The first question which we shall notice is as to the effect of the plat which was recorded. It is insisted by the learned counsel for the plaintiff that the plat is void as a statutory conveyance, "because the justice before whom the acknowledgment was taken did not affix his' seal to the certificate of acknowledgment. It will be seen that the provision, as quoted above, requires that the officer shall certify to the acknowledgment under his ha/nd and seal, and it is said that this was not done in this case. To this objection it is answered that, as the plat was made and recorded nearly fifty-five years ago, having, served every purpose of a recorded plat, it must be conclusively presumed that it was executed in accordance with the existing law, and that the register by mistake omitted to copy the seal on the record, or did not know how'to copy an impression in wax.
The presumption omnia rite et solemniter esse aeta will surely arise from lapse of time; but will a grant be presumed from such testimony as above given? To operate as a conveyance in the fee the plat must be executed in the way and according to the formalities prescribed by the statute. This rule of law was laid down in Gardiner v. Tisdale, 2 Wis. 155; Emmons v. Milwaukee, 32 Wis. 434,—and the principle is well settled upon the authorities. The effect of the Michigan statute obviously is to make a plat, when properly executed and acknowledged, operate as a statutory conveyance of the title of the streets and public grounds designated as such therein to the corporate author
But, assuming that the plat was insufficient to pass the title on account of the omission of the justice to affix his seal to the acknowledgment, the question arises whether the defect has not been cured by statute. The counsel for the defendants insist that it has been, and they rely upon oh. 348,. Laws of 1883 (sec. 2206a, S. & B. Ann. Stats.), to sustain their position. The law reads as follows:
“ Every instrument in writing heretofore made, purporting to convey real estate, and which shall have been duly signed, witnessed, and acknowledged, or proved according to the laws of this state in force at the time of the making of such instrument, but which shall not have been sealed, is hereby declared to be and to have been a full and perfect conveyance of the real estate therein described and as therein purported to be conveyed, the same as if said instrument had been sealed at the time of its execution; and every such instrument shall be entitled to be recorded, and .shall, together with any record thereof heretofore made, be receivable in evidence with the same force and effect as if it had been sealed at the time of its execution; provided, however, that this act shall not apply to deeds to which*530 official seals or seals of corporations should have been affixed, nor to tax deeds.”
It seems to us that this statute applies to this case, and makes the plat operative as a conveyance, in the absence of the seal of the justice. The contention of .the plaintiff is that the seal-of the justice to the acknowledgment was essential to make the plat good as a statutory conveyance. The plat was certainly an instrument in writing purporting to convey real estate. It was duly signed, witnessed, and acknowledged before a justice of the peace, who failed to affix his seal. This provision declares, in effect, that, notwithstanding this defect, the instrument shall be a full and perfect conveyance of the real estate purporting to be conveyed, the same as if the instrument had been duly sealed at the time of its execution.
It is said by the learned counsel for the plaintiff that this provision only extends to instruments not having the seal of the grantor, where they would operate in equity as contracts to convey. But the language of the provision is general, admits of no such qualification, and applies to any instrument intended to operate as a conveyance of real estate, and which is defective for want of a seal. The absence of a seal does not affect its validity Or its legal effect or of any record of it. Under this statute the record is admissible in evidence, and the instrument itself is made effective for the purposes for which it was intended. This is the plain meaning of the language, and is the intent of this law.
Such curative statutes, relating to various matters, have been frequently enacted, and their validity has been sustained. The principle upon which such legislation is held valid is that, “ if the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something which the legislature might have dispensed with the necessity of by prior statute, then a subsequent
These views are of course decisive of this case; for, if the plat is good as a statutory conveyance, the plaintiff has no standing in court, but we feel called upon to add that we entertain very grave doubts whether this action of ejectment will lie upon the undisputed facts appearing in the record. The plaintiff seeks to recover possession of an undivided interest in a public square because the city has perverted the trust, or misappropriated the ground by leasing it to the exposition association for an industrial exposition, and for purposes of a public nature. Conceding that the nature and use of an industrial exposition building does not fulfil the purposes of a market-house, which Mr. Kilbourn permitted to be erected upon it by the town authorities, and that it was a perversion of the trust, yet, does it follow from this that the plaintiff has the right of re-entry for condition broken? The lease given by the city to the exposition building was expressly authorized by statute. Ch. 461, Laws of 1885, provides that “ the city of Milwaukee is hereby authorized to lease the piece of ground lying between State street on the north, Cedar street on the south,
A person cannot maintain an action to abate a public nuisance except where he has sustained some special or peculiar damage different from the public at large. This is elementary law. It is true, the owner of the soil may maintain ejectment against one who enters upon and permanently incumbers a highway to the exclusion of himself and of the public; but this goes upon the principle that the fee remains in such owner, who may lawfully make any use of the highway which is consistent with the public easement. The public have only the right of passage over the highway, and
But, in any view, if we are wrong to the effect of the plat operating as a conveyance of the title of the square, we still cannot perceive how the plaintiff would obtain any fruit or benefit from this action of ejectment. A writ of possession, would be unavailing or fruitless, as it seems to us, under the circumstances. Would a court order the sheriff to pull down forty-six ninety-sixths undivided part of the exposition building, which the legislature has authorized to be built, maintained, and used for the purpose of annual industrial expositions, and, if so, upon what rule of law or principle
We think the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.
By the Court.—It is so ordered.