Weisbrod v. Chicago & North-Western Railway Co.

1. The plat of M.’s addition to a city (though not acknowledged so as to entitle it to record) was recorded in 1817, and showed a street on the east side 40 feet in width. The plat of C.’s addition to the same city, recorded in 1848, showed a street on the west side 40 feet in width. The actual distance between the western line of stakes designating lots in C.’s addition and the eastern line of such stakes in M.’s addition, was 107 feet, of which a central strip 27 feet wide is now claimed as the property of M.; but there was nothing on the plats, nor any monuments on the land to indicate that there was any space between the two platted tracts, or to show the actual boundary between the lands of M. and C. The whole space of 107 feet has been used as a public street since that time, and lots sold on each side with reference to said plats. Seed, that M. and those claiming under him are estopped from setting up title beyond the actual center of the street, as against plaintiff who purchased a lot on the opposite side of the street in 1849, without actual notice of M.’s title. 2. Although the unauthorized record of M.’s plat did not operate as a grant of land for a street, yet his acts in laying out and platting the land, and selling lots in reference to the plat, show a dedication of the land to the public use as a street. 3. The owner of land dedicated for a public street, may maintain ejectment against a railroad company permanently occupying any part of the same for its roadway. 4. A book of records kept in the register’s office of Winnebago county, purporting by a memorandum (without signature) on its first page, to contain on certain pages transcripts of deeds from the records of Brown county, held competent evidence of the conveyance of land by one of the deeds so transcribed, under sec.’5 of “An act to organize the counties of Jefferson,” &c. (Laws of 1842, p. 75), or sec. 145, ch. 13, R. S.

APPEAL from the Circuit Court for Winnebago County. Ejectment, for a strip of land between the middle and eastern boundary of wbat is known as Broad street, in tlie city of Oshkosb. Plaintiff claimed tbe premises as part of Ms lots fronting on said street, and located in Conklin’s addition to said city. The complaint alleges that in 1860 defendant entered npon the premises, and put the plaintiff out of possession thereof, and held “ and still doth unlawfully hold possession thereof, and by artificial embankments, railroad track, side track and other works, has destroyed the use of the same as a public street or highway, and has exclusively appropriated the same to its own use, and claims the sole right to use and possess the same, or a considerable portion thereof, as a railway, for its engines, cars and other movable vehicles, and unlawfully withholds possession thereof from the plaintiff.” The answer admits that defendant uses a strip about eight feet wide, on the west side of the premises, but denies that it was, at the commencement of the action, in possession of any part of said premises, or ever ejected plaintiff therefrom, or exclusively appropriated any part to its own use, or claims the exclusive right to use and possess the same. It then avers, in substance, that the strip of land on which its track is constructed, is the property of one Miller, with whose permission it entered upon and still uses and occupies the same, for the purposes of a railway. It also denies plaintiff’s title to the lots claimed by him on said street. In making out his claim of title to the lots claimed by him, plaintiff offered in evidence “a book which is among the books of records in the office of the register of deeds of said county,” on the first page of which was the following memorandum : “Rook A. Record eor Winnebago County, Wisconsin TERRITORY : The first record in this book, dated July 28,1843. The last was July 19, 1845. See page 221. N. B. — -All the deeds- from page 1 to 8 inclusive, and from page 20 to 147 inclusive, are a transcript from Brown County Records; the remainder of deeds on this book are deeds for record, presented from time to time.” On the same page was also the following: “ Mr. C. Dickinson, Register of Deeds. Sir: — The following resolution was passed by the county board of supervisors at a special session on the 19th of May, 1843: ‘Resolved, That the County Register of Deeds be, and he is hereby requested to record all land conveyances entire, which may be presented to him for record.’ Winnebago County, June 2, 1843. Gr. F. Weight, Clerk of O. B. Supervisors.” The first deed recorded in the book is dated and acknowledged June 29, 1840, and received for record July 22, 1840, and the last deed recorded is dated and acknowledged June 12, 1845, and received for record July 19, 1845. The deed offered to be proven by said record was dated November 6, 1840, and had the following certificate attached: “Received for record, November 7, 1840. J. McKennig, Register.” The evidence was objected to on the ground that “ it was not a proper record of said county, and did not contain necessary certificates, &e.” Objection overruled. Miller’s “ 1st Addition ” to the city of Oshkosh was laid out, and a plat of it recorded, in March, 1847, but without any proper acknowledgment entitling it to record. This plat showed a street on the east side thereof, forty feet wide, the same being a part of Broad Street. Conklin’s “ 2d Addition” to said city was laid out, and the plat recorded, in April, 1848. Plaintiff introduced in evidence the record of both plats, which was received against objection. The precise ground of the objection to Conklin’s plat does not appear from the printed case. The last mentioned plat, on its west side, showed a street forty feet wide, which was also a part of Broad Street. There was nothing in the plats, and no monument on the ground, to show any intervening land, between the two plats, reserved by the owners or either of them for private use; nor was there anything to show the real boundary or dividing line between them. There was in fact an intervening strip about twenty-seven feet in width, being a part of Miller’s tract not delineated on his plat; so that between the west line of stakes designating lots on Conklin’s plat, and the east line of stakes designating lots on Miller’s plat, there was a space of 107 feet in width. Improvements had commenced upon the whole of said space before plaintiff acquired title to his lots, which was in August, 1849 ; and said space has ever since been held and used by the public as a highway. The city authorities caused a map of the city to be made in 1853, on which the whole of said space was delineated as constituting Broad Street; and this map, offered in evidence by plaintiff, was received against objection. In 1855 said street, in its whole width, was graded by the city, and plaintiff testifies that he paid for said grading to the center of the same. He also testifies : “ When I bought, I had no knowledge of any one’s claiming land in the center of the street. When I first came to Oshkosh, Miller showed me his lots on the west side of Broad street, and pointed out the width of the street in front of them.” — It appears that the defendant’s track (the ties being about eight feet in length) was upon the above described strip, twenty-seven feet in width in the middle of the street. The court would not permit defendant to show title in Miller to said strip; holding, under former decisions of this court in the same cause (18 Wis., 35 ; 20 id., 418), that Miller and those claiming under him were estopped from claiming such title. It also refused an offer of evidence of said title to be followed by proof that Miller, at all times since the making of his plat, “ has openly, notoriously and publicly claimed that said strip of land was not platted, and was not a part of the street; that he notified plaintiff, and also the common council of the city, at or before the making of the city map, that he claimed said strip of land, and that it never had been platted; and that when said street was first graded, he notified the street contractors that he claimed said land, and forbade them to grade said strip.” The court refused to instruct the jury at defendant’s request, that the use of a public street for a railroad track, which does not exclude the public use, does not authorize an action of ejectment by the owner of the fee; and that plaintiff even if such owner, could not recover, unless it appeared that defendant occupied the premises denying plaintiff’s title or interest therein. Yerdict and judgment for the plaintiff; and the defendant appealed. 1. The book of records purporting to contain transcripts from Brown county, was improperly admitted in evidence, because there was no certificate of the register of deeds, as required by the act of 1842.* 2. The court erred in admitting the record of the plat of Miller’s Addition. Gardiner v. Tis-dale2 Wis., 153. It did not pass any title in the street out of the proprietor of the land. 3. The defendant should have been allowed to show that Miller, when he platted, left a strip of his land on the east side not included in the plat, and had at all times so claimed and proclaimed. If plaintiff’s evidence of what occurred in 1853 and 1855 as to mapping and grading Broad Street was material, then defendant’s evidence, as rebutting the inferences derived from the former, was not immaterial. Conklin’s plat does not purport to join on the west Miller’s plat, nor show any street on the west side except the one forty feet wide there delineated. Previous to the city map of 1853, there were no records showing Broad Street as claimed, or indicating upon their face that all the space between Miller’s east lots and Conklin’s west lots was a street. That map brought the two plats together, and represented all the lands between as a part of Broad street. If that fact had any tendency to prove an estoppel against Miller, the effect of the evidence would have been overcomb by the evidence offered by defendant and refused. 4. Acts constituting an estoppel, whereby the land of one person is transferred to another, should be plain, decided, and clearly proven, and of a much higher character than those which may serve to establish a dedication. Hill v. Hpley, 31 Pa. St., 331. Admitting even that Miller, by his acts, dedicated the land for street purposes, it does not follow that the title passed out of him. Ang. on Highways, 296-9; Peck v. Smith, 1 Conn., 127; Watrous v. Southworth, 5 id., 305 ; Bex v. Hdmonton, 1 M. & Rob., 24; Bex v. Hatfield, 4 Ad. & EL, 164; Poole v. Huskinson, 11 M. & W., 827. 5. The occupation of a public street for a railroad track, which does not exclude the public use, does not authorize an action of ejectment by the owner of the fee. Poe v. Gowley, 1 0. & P., 123 ; 1 M. & W., 201; 1 Chip., 204 ; Northern T B. Go. v. Smith, 15 Barb., 355 ; Bedfield v. B. B. Go., 25 id., 54; Window v. Lane, 37 id., 244; Jackson v. May, 16 Johns., 184; Ghildv. Ghappell, 5 Seld., 246; Adams v. B. B. Go., 11 Barb., 451-3. argued that if sec. 5 of the act of 1842 requires the register of deeds of Winnebago county to certify in his book of records, that the records transcribed from Brown county are transcripts, then the certificate found in the book is sufficient. People v. Bansom, 2 Hill, 51; 4 Denio, 145 ; Miller v. Lewis, 4 Corns., 568. Again, the book presented was one of the books of record in the register’s office of Winnebago county. Certified transcripts therefrom are made evidence in all cases by sec. 145, ch. 13, R. S. 1858. It would seem, therefore, that the record in the book itself is evidence. People v. Gray, 25 Wend., 467. See also 1 Green! Ev., §§ 483-85. To the point that ejectment will lie against tie defendant, for its occupying plaintiff’s land, counsel cited Adams on Ejectment, 21, and cases there cited; Williams v. B. B. Go., 16 N. Y., 97; Ford v. Oh. & K W. R. W. Go., 14 Wis., 609.