Lins v. Seefeld

105 N.W. 917, 126 Wis. 610, 1906 Wisc. LEXIS 116

• Court: Wisconsin Supreme Court
• Decided: January 9, 1906
• Status: Published

Opinion

Cassoday, 0. J.

1. Two questions are presented for consideration. One is as to tbe ownership of the strip of land two rods wide mentioned in the foregoing statement. It is conceded that prior to October 31, 1851, all the lands' in question and other lands were owned by one William J. Kline,, who under oath made and executed a plat of the same which was duly recorded on the day and year last mentioned. Such execution under oath would seem to be equivalent to a formal acknowledgment as prescribed by sec. 5, ch. 41, R. S. 1849,, especially in view of the curative statute after twenty years* record. Sec. 2216b, Stats. 1898; Bates v. Beloit, 103 Wis. 90, 95, 78 N. W. 1102. Besides, each party claims title, through mesne conveyances, under and by virtue of a deed from Kline and wife, describing the lands conveyed as designated on such plat. It seems to be well settled that:

“Where, after platting land, the owner sells lots and blocks with reference to the streets therein described, both he and his grantees are estopped to deny the legal existence of such streets, although there is not a sufficient statutory dedication, owing to the plat not being properly acknowledged. The right of abutting owners to have a public street remain open is not merely that they may use the same, but that all persons may use it as a public highway, free from all claim or interference of the original proprietor, or those claiming under him, inconsistent with such- use.” Rusk v. Berlin, 173 Ill. 634, 50 N. E. 1071; Smith v. Beloit, 122 Wis. 396, 409-411, 100 N. W. 877, and cases there cited.

As contended by counsel for the defendants, the recording of the plat was a dedication to the public of the streets marked thereon, including their entire width as there indicated; and the mere nonuser of a portion of the street did not operate as a surrender or abandonment of the same for the purposes of a public street. Madison v. Mayers, 97 Wis. 399, 73 N. W. 43. It follows that, upon the recording of that plat, Broadway became a public street in the village of Eagle Center. It has long been'“settled in this state that the owner of a lot bounded by a public street within a recorded town or village plat takes to the center of the street, subject to the public easement.” Hegar v. C. & N. W. R. Co. 26 Wis. 624; Norcross v. Griffiths, 65 Wis. 599, 607, 27 N. W. 606; C. & N. W. R. Co. v. M., R. & K. E. R. Co. 95 Wis. 561, 568, 70 N. W. 678. So Kline, as the owner of said lot 1, continued to be the owner to the center of Broadway street, subject to the public easement. As such owner he was at liberty to convey the whole or any part thereof. The conveyance by himself and wife to Flint and Matheson in 1868 did not purport to convey the whole of said lot 1 nor any part of Broadway street, but recited therein that such conveyance was "aside from Broadway street vacated.” While this language may be subject to criticism, yet it was manifestly intended to except from the premises therein granted so much of said lot 1 as constituted the east half of Broadway street. In other words, it limited the grant to that portion of the lot east of the east line of the street. The same is true of the several mesne conveyances from Flint and Matheson through divers persons down to and including the defendant Frank Seefeld. It follows that Beef eld got no title by virtue of such conveyances to any portion of the land constituting the east half of Broadway street. The mere fact that the portion of Broadway street in question was never “vacated,” as mentioned in the clause of the deed quoted, is of no significance, since a false statement in a description of land, otherwise complete and accurate, is never allowed to frustrate the grant. Thompson v. Jones, 4 Wis. 106, 110; Brown v. La Crosse G. L. & C. Co. 16 Wis. 555. It is equally clear that the title to so much of said lot 1 as constituted the east half of Broadway street passed from Kline and wife to Le Fever, subject to such public easement, June 7, 1869, and from him by mesne conveyances to the plaintiff in this action, as found by the trial court.

2. The other question presented is as to the ownership of the strip of land eighteen inches wide lying between the east line of Broadway street and the barn of the defendants mentioned in the foregoing statement. The trial court held that the plaintiff had title to that strip of land by reason of adverse possession by himself and his grantors for more than twenty years prior to August 18, 1902. But the court also found as a matter of fact and of law that such ownership was subject to the drippings from the eaves of the defendants’ bam situated on said dot 1, block E. That barn and a prior barn situated on the same ground" had been there during all those years, and the eighteen-inch strip mentioned had during all that time been subject to drippings from the eaves of such bams. Such use of that strip by the defendant and his grantors was, in effect, a continued claim of title and possession by them, and, under the evidence in this case, prevented any exclusive possession of the same in the plaintiff or any one under whom he claims title thereto. We find no sufficient evidence in the record to justify such finding of the trial court in respect to such strip of eighteen inches. This branch of the case was brought into the action by an amendment of the complaint upon the trial against the objection of the defendants.

By the Court.- — That portion of the judgment of the county court of Waukesha county giving to the plaintiff the strip eighteen inches wide is reversed, and the balance of the judgment is affirmed, with costs taxable in favor of the defendants.