Brown v. City of Baraboo

74 N.W. 223, 98 Wis. 273, 1898 Wisc. LEXIS 161
Wisconsin Supreme Court·Decided January 11, 1898·Published·Cited by 4 cases

Opinion

Cassoday, C. J.

1. Counsel contends that the defendant did not get title to any portion of the strip of land in question by virtue of any deed made by George W. Brown in his lifetime. The material question is whether George W. Brown, by such deed or deeds, parted with the title to any portion of such strip of land. If he did, then as to such portion his parents took no title. It is a cardinal principle in actions of ejectment that the plaintiff must recover, if at all, [282] on the strength of his own title, and not upon the weakness or want of title in the defendant. Kelley v. McKeon, 67 Wis. 561, and cases there cited. He roust establish such title as against the world, or as against the defendant as a wrongdoer. Id. “ It is an action to try the title and right to the possession of land. More accurately, it is an action to determine the plaintiff’s title and his right to the possession.” Baldwin v. Ely, 66 Wis. 177.

Conceding that the words in the deed from G-eorge W. Brown to Philarmon Pratt, “ all the land lying between the present ráce and the Baraboo river,” were erased before the execution of that deed, as contended by counsel, yet it does not follow that George W. Brown did not, in his lifetime, part with all title to that portion of the strip in question which lies between the mill race and the center of the river, since the deed from him to Delando Pratt and L. and J. ITayes was, manifestly, of land between the mill race and the river, as the same was “ situated at the south end of the said George W. Brown’s mill dam.” That dam, as appears from the plats in evidence, was in line with Yine street and Oak street extended. The land conveyed to De-lando Pratt and L. and J. Hayes was expressly excepted from such conveyance to Philarmon Pratt; and the erasures mentioned may have been, and probably were, so made, because otherwise they would have included the lands thus excepted. The contention that, the land bounded by the river did not extend to the center of the river is certainly without foundation. Norcross v. Griffiths, 65 Wis. 599. But, independent of that, the land so conveyed to Philarmon Pratt was bounded “on the east by Walnut street, on the •south by block number 7, on the west by Yine street,” and “ on the north by the center of the Baraboo river,” and conveyed “ the sawmill and the south half of the dam.” The land so conveyed is a portion of the land marked on the plat as “reserved for private use;” and although bounded [283] on the east by ’Walnut street, and on tbe west by Yine street, yet neither of those streets appears upon the plat as extending north of block 7. Nevertheless, the grantee in that deed, and those claiming under him, thereby acquired the right, as against the grantor and those claiming under him, to treat each and both of these streets as extending north to the river; and it is established by the evidence that at the time of making the deed Yine street was being used by the public as and for a public street, four rods wide, from blocks 7 and 8, as far north as the mill race; and that such use by the public has continued ever since, and that for more than forty years Yine street, so extended, has been used by the public, as and for a public street, as far north as the river. There can be no question but that Pratt, as such grantee, took title to the center of Yine street, so extended to the river, subject, however, to the public easement. “It is the„ settled doctrine in this state that the grantee of a lot in a recorded plat, except where the terms of his deed or the pjat expressly exclude that construction, takes to the center of adjoining public ways, subject to the-public easement; and the fact that the description in his deed, after stating the number of his lot, gives its dimensions as they are exclusive of the highway, does not affect the construction.” Pettibone v. Hamilton, 40 Wis. 402; Jarstadt v. Morgan, 48 Wis. 245; Andrews v. Youmans, 78 Wis. 56; Johnson & Co. v. Arnold, 91 Ga. 659.

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Brown v. City of Baraboo, 74 N.W. 223, 98 Wis. 273, 1898 Wisc. LEXIS 161 (Wis. 1898).

74 N.W. 223 (Brown v. City of Baraboo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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