Ballard v. City of Appleton

26 Wis. 67

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Cole, J.

The counsel for the plaintiff raises no question as to the dedication of a strip of land, sixty feet in width, running through block twenty-nine, one hundred and twenty feet north of and parallel to College avenue. But he insists that the court below should have clearly defined the boundaries of that street, by finding that it was only sixty feet wide, and thus definitively settled all question as to the right of the city to occupy the adjoining strip, twelve and a half feet wide, on the north, for any purpose whatever. The court found, as a matter of fact, “ that a strip of land, sixty feet in width, running through the block one hundred and twenty feet from College avenue, was dedicated to the public for a street, and accepted as such, and that there is no attempt, on the part of the city authorities, to encroach upon any other than the sixty feet strip.” This finding, as it appears to us, most conclusively negatives the idea that the street is more than sixty feet wide, and is, of course, binding upon the city upon that question. We cannot see how any other questions of title can he settled in the action.

It is claimed that there are irregularities in the proceedings of the city authorities, in causing Johnston street to be graded and improved. But no work had been done, or assessments made, when the action was commenced. Suppose the city authorities did not comply with the charter in ordering the work to be done, and in advertising for bids, how has the plaintiff been injured by these irregularities ? No taxes have yet been levied, or assessments made. He is clearly premature in applying for an injunction at this stage of the proceedings.

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