Yates v. Judd

18 Wis. 118 | Wis. | 1864

By the Court,

DixoN, C. J.

I think the defense in this case fully sustained upon the doctrine of dedication; that the premises for the injury to which the plaintiff complains, were devoted by the original proprietors to the public use as a highway by water, and consequently that the grading, filling and other works of the' plaintiff within the line of such highway, by which it is blocked up and destroyed, were a public nuisance. I do not care to repeat the argument found in the brief of defendant’s counsel, which so ably and, in my judgment, unan-swerably sustains this conclusion. I am reminded of nothing which I might add, and I am certainly not disposed to qualify or limit any of the propositions of the learned counsel under this head.

I also think that the same conclusion is sustained by the opinion of this court in the recent case of Arnold v. Elmore, 16 Wis., 509, with reference to this same plat. Speaking of the original plat and that of the commissioners in partition, and of the effect to be ascribed to them as evidence of the intention and purposes of the proprietors, this question and answer occur: “ What stronger evidence could be afforded that the original proprietors of fraction 6, when they platted it, intended that the lots bounded by a highway or the river should extend to the center of the highway or river, subject of course to the public easement, without any reservation whatever, except where it was made for the proposed canal ? This is the clear intention manifest from the plat and the record in the partition suit, and of course could not be removed by parol evidence.” I still think that document conclusive of the intention of the proprietors, and, as indicated by the question, that highways by land and highways by river, wherever clearly delineated and their boundaries fixed, stand on the same footing, and that it is immaterial whether they are actually passable in the whole extent or not. If not passable, the public have the right to make them so, and for that purpose to see that they are kept clear from additional obstructions and incumbrances. As to highways by land this conclusion is undisputed. The same rule applies with equal force to a highway by water. The object of the proprietors, wherever they fixed the limits of the highway by water by prescribing the boundaries of lots and blocks adjoining the river, undoubtedly was to give space for improvement, and to allow the navigable channel of the river to be widened to meet the future wants of trade and commerce. To say that the space thus dedicated to improvement by enlarging the navigable capacity of the river, may be filled up and appropriated to private uses, is to defeat the obvious purpose of the proprietors, to deprive the public of manifest and most important advantages, and, in many cases, to injure and defraud the proprietors of adjacent lots, who have purchased relying upon the boundaries fixed by the plat. In this case, the premises occupied by the defendant, though platted and purchased as bordering upon the river, would be entirely cut off from it. The original proprietors having the land between the line of actually navigable waters and the shore at their disposal, it seems to me that there can be no doubt of their power thus to dedicate it. They obviously would have the same power of disposition as over the dry land, and might limit their rights and the rights of their heirs and assigns by the same means. They might estop themselves and their heirs and assigns forever from asserting any dominion over it inconsistent with the public use so long as that use continued, or until it was unequivocally abandoned, though the title still remained. This I understand to be the principle upon which the doctrine of dedication rests (Connehan vs. Ford, 9 Wis., 244), and I think it fully applicable here.

Believing, then, that the owners could dedicate, and that they intended to do so, it only remains to be determined whether their acts have been ratified on the part of the public, so as to make the dedication complete. I think they have. The establishment of the “ dock line ” by the common council of Milwaukee, under the authority granted by the legislature, was a clear acceptance of the lands dedicated. It is true that the “ dock line ” is within the line of dedication, thus abandoning a part; but so far as it goes, it is an unequivocal acceptance, and thoroughly establishes the public right.

As to the remarks of this court in Walker vs. Shepardson, 4 Wis., 511 and 512, to which we are referred by counsel for the plaintiff, that the legislature could not authorize the establishment of a “ dock line ” within the non-navigable waters of the river without compensation to the riparian owner, it is sufficient to say that the question of a right by dedication is not ¿mentioned. It is as well settled that the public may acquire an . easement or use with the assent of the owner without compensation, as that it cannot do so against his will except upon pay.ment of the fair value of the property taken. Both propositions being well established, and the former not noticed, I am .bound to assume either that it was not brought to the attention of ..the court, or that it was inadvertently overlooked. It is nev,er safe to assume a point as decided upon which the opinion is .entirely silent. Besides, it appears that what was said upon this subject was regarded by the court as somewhat obiter. This-may. account for any apparent want of care in the examination of the point.

I think the judgment below should be reversed, and a new trial awarded.

Cole, J., dissented.