City of Madison v. Mayers

40 L.R.A. 635, 73 N.W. 43, 97 Wis. 399, 1897 Wisc. LEXIS 79

• Court: Wisconsin Supreme Court
• Decided: November 16, 1897
• Status: Published

Opinion

Cassoday, O. J.

The complaint alleges, in effect, that Spaight street, between Patterson and Livingston streets, was regularly laid out, platted, and recorded, and is sixty-sis feet wide, and was and is' traveled, and runs along the south side of block 149. The several answers allege that the street was established and dedicated under and by virtue of the Doty plat, duly executed and recorded May 7,1837; that November 27,1868, the common council of the city widened the street by extending the northerly boundary thereof, opposite lots 4, 5, 6, 7, and 8 in block 150, into block 149, as ■therein stated; that December 4, 1868, the common council vacated the portion of the street therein described, along a part of the south side of block 149; and that the several lots in block 150 were platted by that same Doty plat. Thus, it was expressly claimed by alb the parties to this action that the section of Spaight street in question was originally established by a recorded plat or plats, and that the same ran along the south line of block 149, or between blocks 149 and 150, as designated on such plat or plats. The court found that it was a public street, “ and extends between blocks 149 and 150,” but that it was such only by virtue of being used, worked, and traveled for many years. The court then found that the true location of that street, according to the various plats, was a number of feet north of the present north line ■of the street. Since the present north line of the street is isome eight feet in the narrowest place, and some thirty-two feet in the widest place, north of the original south line of block 149, it is obvious that the court thus found that “ the true location ” of that section of the street was not between blocks 149 and 150, as previously found, and as claimed by .all parties, but “ a number of feet north of the present north line ” of the street (that is to say, across some of the lots in block 149, or entirely north of that block). Counsel was .asked on the argument how many feet north of the present north line of the street the trial court, by such finding, had .in mind as the true location of the street, according to the various plats; and his answer was, “About 200 feet.” Such finding seems to be based upon the testimony of one of the surveyors to the effect that he had recently measured the distance on Patterson street from the shore line of Third Lake to the shore line of Fourth Lake, and found it to be 4,044 feet; that such distance, as indicated by the Pritchette plat of 1839, as near as he could ascertain it, was 3,762 feet (that is to say, 282 feet less than the true distance); and that, not with reference to where it is laid out, but according to that plat, the true location of Spaight street was approximately something over 200 feet north from where it is at present.

Of course, if the true location of the street, according to the plat, would be 200 feet north of where it now is, then the true location of block 149, according to the plat, would be still further north of such true location, and that would necessarily place block 150 where block 149 is now. That would necessarily, according to the plat, disarrange, not only the balance of Spaight street, but other streets in the vicinity, and besides would be likely to unsettle numerous titles. The city engineer testified to the effect that there were no original monuments, either natural or made, in the city, except one in the capítol park, and that he thought no one had ever been able to find that; that there was no plat which covered the entire city which would agree with the land as laid out over the entire city; that he used a map made by McCabe, city surveyer, June 16, 1868, of the street and block 149 in question, attached to the petition for widening the street; that that map agreed with the Prichette plat,, recorded in the register’s office in 1839; that there was a discrepancy between the two Doty plats and the Pritchette-plat, as to the location of the street in question, varying-from nothing to twenty-odd feet; that such discrepancy was. owing to the fact that the Pritchette plat put the west end of the section of the street in question further south, and the east end of such section further north, than either of the Doty plats; that be assumed that the Pritchette plat was evidence that the original land had been staked out in accordance therewith; that in making the map in evidence, of the premises in question, he resorted to old fences, old buildings, and the streets, as laid out and used for many years, as indicating the lines evidently established by former surveys in the city; that the Pritchette plat gives no dimensions, but that after he discovered that the McCabe plat practically agreed with it, and that that did give dimensions, he took those dimensions as being the true dimensions as originally staked out in block 149; that he assumed that the streets and blocks, as laid out, had approximately been accurately laid out by former surveyors; that the surveys he made in that part of the city correspond with those made by Capt. Nader and Prof. Conover; that, as his starting point in locating block 149, he took the stake located by Capt. Nader, after verifying the same to see that it was correct; that that gave him the south line of Jenifer and the west line of Patterson streets, and the corner of block 149; that, assuming that those two streets were accurately laid out, then block 149 would correspond with the Pritchette plat, with the exception of the widening of Spaight street mentioned; that the plat indicates that all regular lots are sixty-six feet wide, and all streets sixty-six feet wide, but as a matter of fact some of the lots run over more or less; that, if such actual distances were to control, houses would soon be in the streets, and streets in the lots, and so, in making the survey, he tried to ascertain from the streets, as laid out and the fences and buildings, as they were located, where the street actually was on the ground, as laid out on the plat. Such evidence as to the practical location of the section of Spaight street in question, as actually laid out under the plats, does not seem to be overcome by anything in the record,— certainly not by the mere fact that the actual distance between the respective shores of the two lakes on the line of Patterson, street is 282 feet greater than, it would appear to be by tbe Pritchette plat. .

The question recurs whether, under the evidence and the admissions in the pleadings,, the trial court was justified in holding that such section of Spaight street was never dedicated to the public as a street by any of such plats, and that it was never laid out, located, or established as such at the jDoint or points fixed by such plats, but was a public street only by virtue of having been used, worked, and traveled as a street for many years. It is sixty years since the Doty plat was recorded, and fifty-eight years since the Pritchette plat was recorded, and twenty-nine years since the McCabe map was made. Those two plats, as to the premises in question, differ from each other as indicated, yet such difference is too slight to prevent a practical location of the street under the Pritchette plat. It appears that Spaight, Livingston, Patterson, and Jenifer streets have each and all been actually located, opened, and traveled for a period of forty years or more, that block 149 is between those streets, and that during that time lots in that block and other blocks in the vicinity have been occupied by persons residing thereon. In the absence of any original monuments which can be ascertained, as indicated, such locations and occupancy, and the lines and corners of such streets and blocks thereby established, as indicated by old fences, old buildings, and the streets as so laid out and used for many years, and stakes and monuments established by former surveyors, were competent evidence, as tending to prove — and in our opinion do clearly prove — that the section of Spaight street in question was more than forty years ago actually located and laid out under and pursuant to the Pritchette plat, and hence the same was a practical construction of that portion of that plat. Numerous authorities might be cited in support of

that proposition. Marsh v. Mitchell, 25 Wis. 706; Nys v. Biemeret, 44 Wis. 104; Racine v. J. l. Case Plow Co. 56 ; State v. Schwin, 65 Wis. 207; Miner v. Brader, 65 Wis. 537; Hrouska v. Janke, 66 Wis. 252; Kœnigs v. Jung, 73 Wis. 178; Racine v. Emerson, 85 Wis. 80; Riley v. Griffin, 16 Ga. 144; S. C. 60 Am. Dec. 726. Thus, in one of the •cases cited it was held that: “In ascertaining the true location of the streets, lots, and blocks in a city, according to the plat and survey thereof, regard is to be had (1) to the natural monuments referred to therein, and (2) to the artificial monuments placed by the surveyor to mark lines or boundaries, before resorting to the courses and distances marked on the plat or survey. If no monuments are mentioned or in existence, evidence of long-continued occupation, though beyond the given distance, is admissible. If the description is ambiguous or doubtful, parol evidence of the practical construction given by the parties by acts of occupation, or recognition of monuments or boundaries, is admissible.” Courts have gone still further, and held, in effect, that a competent surveyor may, as a witness, in a proper case and under proper circumstances, give his opinion as to whether certain piles of stone and certain mark or marks on trees were made by a surveyor, and indicated a boundary line. Davis v. Mason, 4 Pick. 156; Knox v. Clark, 123 Mass. 216; Brantly v. Swift, 24 Ala. 390; Clegg v. Fields, 7 Jones, Law (N. C.), 37. Certainly a mere discrepancy in distance is not to overcome such practical location of the street under and in pursuance of the plat.

We must hold, upon the evidence in the record as well as the pleadings, that the section of Spaight street in question was so laid out and opened under and in pursuance of the Pritchette plat, and that the recording of that plat was a •dedication of such street to the public, and that such dedication covered and included the whole width of that street as indicated on that plat.

2. The mere fact that the eastern portion of that section of the street was widened by extending the same north into block 149, as mentioned, and that the western portion thereof was narrowed by vacating a piece on the north side of the street, as mentioned, in no way changed the south line of the street, as located under that plat.

3. Nor does the fact that that section of the street was never worked or fitted for travel clear to the south line thereof, nor at all south of the iron railing or fence mentioned in the pleadings and findings, prevent the city from working and fitting the same for travel clear to the south line thereof as located under the Prit'chette plat, whenever it may choose to do so. It is well settled that no mere nonuser of that side of the street for the time mentioned can operate as a surrender or abandonment of the same for the purposes of a public street. Reilly v. Racine, Wis. 526; State v. Leaver, 62 Wis. 387; Childs v. Nelson, 69 Wis. 125; Maire v. Kruse, 85 Wis. 302; Nicolai v. Davis, 91 Wis. 370. In this last case it was held that “ the mere fact that the plaintiff had for many years encroached upon the. road, by putting a portion of his fences in the road and otherwise, did not bar the town from the legal right of having the road at any time opened to its full width as originally surveyed and laid out.” It follows from what has been said that the space between the iron railing or fence and the south line of the street, as so located under the plat, was at the time of the commencement of this action, and is now, a part of Spaight street, and may be worked and fitted for public use as a part of the street whenever the city may choose to do so.

4. The several defendants, as abutting lot owners, except Kerns, justified what they had done, respectively in respect to removing stone, earth, and other materials from within the limits of the street as so laid out, by claiming that they severally owned the land clear up to the iron railing or fence, and that the street did not extend south of that railing or fence, and the findings of the court are in harmony with such claim. From what has been said, it is obvious that such ruling was erroneous. The question recurs whether the city has such an interest in that branch of the relief demanded as to maintain this action. The right of the city in the space between the iron railing or fence and such south line of the street as so located being as stated, it follows, under the repeated decisions of this court, that the city has such an interest therein that it may maintain this action so far as to restrain the respective defendants, as abutting lot owners, from so removing stone, earth, and other materials from within the limits of such street, or from impairing the embankment of the street as it now exists, or making it more expensive and difficult to fit the whole width of the street for travel. To that extent the injunction should have been made perpetual. In support of this proposition it is only necessary to cite the following cases: Waukesha Hygeia Mineral Spring Co. v. Waukesha, 83 Wis. 475; Neshkoro v. Nest, 85 Wis. 126; Eau Claire v. Matzke, 86 Wis. 291.

5. Counsel contend, in effect, that block 150 on the plat is itself a monument, and that, according to that plat, there appears to have been a strip of land between the section of Spaight street in question and the lake shore, for the whole distance, which is divided up into lots numbered from 1 to 9, inclusive, and hence that the plat should be so construed and modified as in some way to satisfy such calls of land for such lots. But the fact remains that the whole of block 150 is south of Spaight street on the plat, and hence is necessarily south of it, as actually located under and in pursuance of the plat. In other words, the location of the streets, as •mentioned, necessarily located that block. Certainly the several owners of land between that street, as so located, and the lake shore, have all the rights of abutting owners upon the street, and also all the rights of riparian owners on the shore of the lake. But if there is any defendant who owns no land between the street, as so located, and the shore of the lake, then we are unable to perceive upon what theory be could properly be regarded as an abutting owner or riparian owner. A mere mistake as to the quantity or shape of the land in the block, or as to whether the shore of the lake at some particular point was within the limits of the street, cannot be allowed to frustrate the plat, as such mistake comes within the well-recognized maxim: Falsa demonstratio non nocet. Sherwood v. Sherwood, 45 Wis. 364; Paine v. Benton, 32 Wis. 496; Dupont v. Davis, 30 Wis. 175; Kennedy v. Knight, 21 Wis. 347. The dimensions of the several lots in the .block, as they appear upon ' the plat, must, like other courses and distances, yield to the actual condition of things as they existed, and be determined by the practical construction and location of the plat upon the grounds.

6. There is another branch of this case. The complaint alleges, in effect, that the city has jurisdiction over the entire surface of the lake; that the defendants have placed stones, earth, and other materials in the waters of the lake, not only within the limits of the street, but outside of, and beyond the limits of, the street, even to the distance of sixty or seventy feet from the south line of that street,— and prays an injunction to restrain the defendants from so filling in the lake. The several answers allege, and the court found, in effect, that such jurisdiction of the city over the lake was for limited and special purposes only, but not for any of the purposes set forth in the complaint. So far as the right of the city to work and prepare the street for travel for the whole width thereof, even where the shore of the lake may be within the limits of the street, enough has already been said. But the question recurs as to whether the city may properly, in this action, restrain the defendants from so filling in the lake outside and beyond the limits of the street.

The provisions of the charter, cited in the brief of counsel, give the city power to enact ordinances for the benefit of trade, commerce, and health, and to provide for the abatement and removal of nuisances thereunder, and “ generally to take such other measures for the public health as shall be deemed proper.” Such police regulations may well be conceded, but they do not authorize the city to restrain the filling in of the lake in question, outside of the limits of the street. Under the repeated decisions of this court, there can be no question but that the title to the bed of th'e lake was and is in the state. But such of the defendants as own lots between the shore of the lake and the south line of the street have the rights of riparian owners on the shore of the lake. Such rights include the right of each to construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, without obstructing it, far enough to reach water actually navigable for such boats as are in use or appropriate to the lake. Cohn v. Wausau Boom Co. 47 Wis. 322; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 82; Northern Pine Land Co. v. Bigelow, 84 Wis. 163, 164; Priewe v. Wis. State L. & Imp. Co. 93 Vis. 547, and cases there cited. Such right, however, is a private right, and is subordinate to the public right to navigate the lake, and may be regulated or prohibited by law. Id. Obviously, the city has no proprietary or corporate interest in the lake, nor the shore of the lake, outside of the limits of the street. Nor does it appear that the acts complained of are such as to affect the health of any one. Ve are clearly of the opinion that the city has no such interest or right in the lake or the waters thereof, outside of the limits of the street, as to enjoin the defendants from the acts complained of. Milwaukee v. M. & B. R. Co. 7 Wis. 85; Sheboygan v. S. & F. du L. R. Co. 21 Wis. 667; Racine v. Crotsenberg, 61 Wis. 481; Janesville v. Carpenter, 77 Wis. 288. In such a case the right of the city to remove such a purpresture or public nuisance Is no greater than that of an individual, and this court has expressly held that an individual could not remove the same. Larson v. Furlong, 50 Wis. 681. In England such purprest-tire or public nuisance was removable or abatable only by suit of the crown, having superintendence and control over public rights, at the instance of the attorney general. Gould, Waters, §§ 21, 167. In this country such right of action is in the state. Id. §§ 93, 168. Thus, in People v. Vanderbilt, 28 N. Y. 396, it was held that “ the remedy to prevent the erection of a purpresture and nuisance in a bay or navigable river is by injunction at the suit- of the attorney general.” See, also, People ex rel. Teschemacher v. Davidson, 30 Cal. 379. We must hold that the court properly refused to enjoin the defendants from filling in the lake outside of the limits of the street, and that as to that branch of the case the complaint was properly dismissed.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion. In view of the fact that the findings of the trial court are sustained in part and set aside in part, costs and disbursements are allowed in favor of the plaintiff and against the defendants, except Kerns, for the expense of printing the case and for the fees of the clerk of this court, but no other costs or expenses are allowed to either party.