In Re Vacating Plat of Chiwaukee

36 N.W.2d 61, 254 Wis. 273, 1949 Wisc. LEXIS 244

• Court: Wisconsin Supreme Court
• Decided: January 19, 1949
• Status: Published

Opinions

Broadfoot, J.

The appellants ask to have the order of the trial court dismissed for the following reasons: (1) That the entire one-hunclred-foot strip of the Chiwaukee road is a public highway because of public use; (2) that the Chiwaukee road is a public highway by dedication and acceptance by the town board of Pleasant Prairie; (3) vacation of any part thereof should be denied because a perpetual easement to the entire one-hundred-foot width of the road was created and the applicants are estopped from denying its existence; and (4) that the trial court committed an abuse of discretion in its order.

As to the first contention, the trial court found that the public acquired no rights by user except over the twenty-foot concrete strip. This finding is in accord with the record.

As to the second contention, there was never any dedication of Chiwaukee road as a public highway, nor has there ever been any legal acceptance thereof by the town board of Pleasant Prairie. On April 20, 1945, an application was filed with the town clerk of said town to have Chiwaukee terrace designated and maintained as a public highway. On August 10, 1945, which was more than ten days after the'filing of the application, the town board, by resolution, accepted the road to maintain as other town roads. The application on its face does not appear to be signed by six or more freeholders residing within the limits of such plat, as required by sec. 80.38, Stats.

As to the third contention, the recording of the plat and conveyance of lots by the owner with reference to the plat constituted the granting of an easement to the purchasers of lots within the subdivision to ingress and egress over said private roadway in common with other lot owners, and the original proprietors and their grantees are estopped to deny the legal existence of such rights of ingress and egress. Kennedy v. Barnish (1943), 244 Wis. 137, 11 N. W. (2d) 682; Maas v. Schwaab (1944), 246 Wis. 102, 16 N. W. (2d) 380. The trial court recognized the easement in its order and preserved the same over the twenty-foot concrete strip.

This was a proceeding under secs. 236.17 and 236.18, Stats. This statute was construed and applied in In re Vacation of Plat of Garden City (1936), 221 Wis. 134, 266 N. W. 202. The lands in question were platted in 1.921, at which time the power of the court to vacate plats was substantially the same as in 1947. Secs. 2265 and 2266, Stats. 1921. As those statutes were in effect when the land was platted and when the objectors and their predecessors in title purchased their lots, they are imported as a matter of law into their contracts of purchase, and all of the relative rights and obligations of the parties are subject to the provisions of those statutes, including the manner and conditions under which the portion of the plat involved herein may be vacated. Under the statutes, the only limit upon the court’s authority to vacate a portion of the plat is the following:

“. . . except such parts thereof as have been dedicated to and accepted by the public for use as a street or highway or as streets or highways.” Sec. 236.17, Stats.

The dwelling house situated within the limits of Chiwaukee road as outlined on the plat was there when the plat was completed and recorded. It was visible to all purchasers of lots within the subdivision. The record does not disclose that any objection has ever been raised by anyone to the maintenance of the buildings within the one-hundred-foot strip. We can find no abuse of discretion on the part of the court.

By the Court. — Order affirmed.