Pettibone v. Hamilton

Lyon, J.

I. In Kimball v. The City of Kenosha, 4 Wis., 321 , decided in 1855, it was held that the grantee of a lot bounded by a public street in a recorded town plat, whether the lot is designated in the conveyance thereof by its number on the plat or by some other appropriate description, takes to *411 the center of such street, subject only to the public easement, unless the street is expressly excluded from the grant by something appearing upon the plat, or by the terms of the conveyance. This doctrine has since been repeatedly reaffirmed by this court, and is now too firmly established to be disputed or drawn in question. Goodall v. Milwaukee, 5 Wis., 32 ; Milwaukee v. Mil. & Beloit R. R. Co., 7 id., 85 ; Ford v. The Chicago & N. W. Railway Co., 14 id., 609; Weisbrod v. The Same, 18 id., 36; S. C., 20 id., 419; S. C., 21 id., 602.

Manifestly this doctrine is applicable to all public ways, such as alleys, footways, and the like; and it was substantially so held in Kimball v. Kenosha, supra.

That “Darling Place” became a public way by the recording of the plat of the subdivision of block C, and subject to the ride laid down in the above cases, seems very clear. We think that the alley in question also became thereby a public way, and hence, subject to the same rule of law. It is specified in the certificate of the proprietors accompanying the plat, that such alley is for the accomodation of the front lots. This language is peculiar. If it is restrictive, it certainly does not restrict the use of the alley to the owners of the front lots, but leaves the whole public who have occasion to go upon those lots, the right, as against the proprietors of the plat, of ingress thereto and egress therefrom, through the alley. Because the whole public have lawful authority to pass through for particular purposes, the alley is necessarily a public way, on the same principle that the “ Place ” is a public way because the whole public may lawfully pass through it in a particular ma/rmer, to wit, on foot.

The “Place” and alley being public ways and withiu the rule of Kimball v. Kenosha and the other cases cited above, we are next to inquire whether the plat, or the conveyances of the adjacent lots by the proprietors of the plat, expressly exclude the several grantees from the ownership of such “ Place ” and alley, subject to the public easement therein. Certainly *412 no such exclusion is expressed by the plat., "We agree with counsel for the plaintiffs, that the recording of the plat operated to place the owners of the front lots which Dr. Darling had previously conveyed by metes and bounds, on the same footing in respect to the alley and “ Darling Place,” as though such conveyances had been made after the plat was recorded. It is reasonable to infer that such was the intention of Dr. Darling and his grantees and coproprietors. If their intention was different, it should have been so clearly expressed on the face of the plat, that purchasers from Mason and Sander need not be misled by the plat to believe they were purchasing an interest in the public ways, adjoining their lots.

Moreover, we fail to perceive any significance in the fact that in some conveyances of front lots made by Dr. Darling after the recording of the plat, the depth of the lots, as well as their numbers on the plat, is given. It seems obvious that if a lot is marked on the plat as being of a given depth exclusive of the street on which it abuts, there can be no difference between a conveyance thereof which describes it by its number alone, and one which adds to that description the depth of the lot as specified on the plat. Either is an appropriate, description of the lot, and, in the absence of express exclusion, either conveys to the center of the adjoining street, subject only to the public easement.

In short, we fail to find any sufficient evidence that- Dr. Darling retained or intended to retain any title whatever to “Darling Place” or the alley, after he conveyed the land abutting thereon.

We conclude that the fee of the “ Place ” and the alley, subject only to the public easement, is in the owners of the adjoining lots; that is, in the plaintiffs and the other owners of the front lots respectively, and in the defendants, who own all of the land abutting upon the “ Place ” on the west.

It remains to determine the limits or boundaries of the owners of each class. The plaintiffs claim that the owner of *413 eacb front lot, not only owns tbe fee of tbe alley in tbe rear of bis lot, but also tbe fee to tbe center of “Darling Place.” On tbe other band, tbe defendants maintain tbat the owners of front lots take no title to any portion of “ Darling Place,” and, if they have any interest in tbe fee of tbe alley, tbat they take only to the center thereof; and tbat, by virtue of their ownership of tbe land abutting upon tbe “Place” on tbe west, and of tbe conveyance to them of Dr. Darling’s interest in tbe ways, they, tbe defendants, are tbe owners in fee of tbe “Place” and at least tbe west half of tbe alley.

It is understood tbat, before the last mentioned conveyance was executed, Dr. Darling bad conveyed tbe legal or equitable title, or both, to all of tbe front lots. Tbe opinion has already been expressed, that, after doing so, and after having conveyed to tbe defendants tbe land abutting upon “ Darling Place” on tbe west, Dr. Dai’ling bad no remaining interest in either tbe “ Place ” or alley, and, as a matter of course, could convey no title thereto to tbe defendants. Hence, tbe respective interests of tbe defendants and of tbe owners of the front lots, in tbe fee of these two ways, must be determined by tbe general rules of law governing tbe rights of tbe owners of lots in recorded town plats, in tbe soil or fee of public ways adjoining such lots.

Mariner v. Schulte, 13 Wis., 692 , was a case where two public ways in a recorded town plat, one by land and tbe other by water, were located side by side, with no space between them. Tbe controversy was for land made by filling a portion of tbe way by water. It was held tbat tbe boundary between opposite lots, abutting respectively on eacb way, was tbe line between tbe two ways, and tbat tbe owner of each lot took tbe fee to tbat line by virtue of bis conveyance of tbe lot, subject only to tbe public easement.

This case, in all of its leading features, is very similar to tbat of Mariner v. Schulte. And no good reason is perceived why tbe rule there adopted should not be applied to it. Dr. *414 Darling’s homestead adjoined “ Darling Place ” on the west; and it is reasonable to suppose be intended tbat be and bis grantees should hare access therefrom, across the “ Place,” to the stores or other buildings on the front lots, and that such right of access should not be destroyed by the termination of the public easement over the place. On the other hand, it is also reasonable to suppose Dr. Darling intended that the owners of the front lots should, in any contingency, have access to the “ Place ” across the alley. We have concluded to follow Mariner v. Schulte so far as to hold that the owners of the front lots take the fee of the whole alley at least, by virtue of their conveyance, each owner taking, in severalty, the portion of the same lying in the rear of his lot. Whether such owners also take the fee of any portion of the “ Place,” is a question not necessary to be here determined, and upon which we express no opinion.

It may be observed in this connection, that the plat, and the conveyance of lots by the proprietors with reference to it, constitute a valid dedication to the public use, of the streets and ways marked on the plat, binding upon such, proprietors, without any formal acceptance of such dedication by the public authorities. Williams v. Smith, 22 Wis., 594 ; R. S., ch. 47, sec. 5 (Tay. Stats., 774, § 5). We do not say, however, that such acceptance is not necessary to render the municipality within which such street or way is located, liable for damages resulting from the same being out of repair. We leave that proposition undecided.

II. Having determined that the defendants have no title to the alley, we are prepared to pass upon the validity of the proceedings by which the common council of Fond du Lac, on the petition of the defendants alone, attempted to vacate “ Darling Place,” and thus to destroy or surrender the public easement therein.

The power of the common council in that behalf is given by the charter of the city, as follo-ws: “ Upon petition in writ *415 ing of two-thirds of the owners of lots on any street, alley or liigbway in said city, tbe common council shall have power to discontinue or vacate such street, alley or highway, or' any part thereof, upon the vote of two-thirds of all the aldermen elect, as provided in this chapter.” P. & L. Laws of 1868, ch. 59, sub-ch. XT, sec. 1 (p. 135).

It is too plain for argument or controversy, that the petition specified in the charter is essential to the jurisdiction'of the council. Wanting the required petition, all ordinances or resolutions of the council by which it is attempted to vacate public ways, are absolutely void.

Eor the purposes of this case, we will assume the charter to mean that the petition of the owners of two-thirds of the frontage on the street proposed to be vacated is sufficient to give the council jurisdiction of the matter, and not that the petition of a majority of such owners, by count, without regard to the extent of their ownership, is necessarily requisite for that purpose.

Upon the construction of the charter thus assumed (which is the most favorable to the defendants), the petition to vacate “ Darling Place ” conferred no jurisdiction upon the council, because the defendants, who were the only petitioners therefor, were not the owners of two-thirds of the frontage abutting upon said “Place,” but only of one-half thereof. Hence, the proceeding of the council in that behalf are null and void, and “Darling Place” still a public footway, which the defendants have no lawful authority to close up or obstruct.

III. The plaintiff's being the owners in severalty of portions of the alley, and the defendants being about to close up “ Darling Place ” by placing a permanent obstruction therein, the next question is, whether an injunction may properly be granted at the suit of the plaintiffs, or of one or more of them, to restrain the defendants from so doing.

If the plaintiffs will suffer private and special injury by the closing up of “ Darling Place ” — injury not common to the *416 whole public, — they can maintain an action in equity to prevent tbe threatened injury. And it is the settled law of this state, that an obstruction which prevents the lawful use of a public street or highway, besides being a public nuisance, is a special injury to the adjoining lot-owners, and, when such an obstruction is threatened, they may proceed in a court of equity to prevent it. Walker v. Shepardson, 2 Wis., 384 ; Barnes v. Racine, 4 id., 454 ; Williams v. Smith, 22 id., 594.

It is objected that the special injury which the plaintiffs will suffer if “ Darling Place ” be closed up as threatened, is not sufficiently stated in the complaint. The averment is, that the threatened acts, if executed, “ will greatly diminish .the value of said lots and buildings of these plaintiffs, and will greatly increase the risk and liability from fire to said buildings, and will otherwise greatly injure the said property of these plaintiffs.” This is as specific as the averment of special injury in Walker v. Shepardson, supra, in which case the same objection was taken to the bill by demurrer. But the averment was held sufficient, and the demurrer overruled. In the opinion of the court, prepared by Chief Justice WhitoN, we find the following language: “ Objection is made to the bill, that it does not state how the complainant’s property will be injured. But we think that the charge made in the bill, that the defendant was placing obstructions in the bed of the river in front of the complainant’s lots and docks, thereby blocking up and obstructing the channel of the stream, not only shows that special damage, quite distinct from that which the public will suffer, will be sustained by the complainant, if the defendant is permitted to complete the erection of the nuisance, but indicates also how the injury will be accomplished.” (p. 396.) On the authority of that case, it must be held that the complaint contains a sufficient averment that if the acts threatened by the defendants are executed, private and special injury, distinct from that which *417 tbe public at large will suffer thereby, will result to the plaintiffs severally.

IY. But it is further argued by the learned counsel for the defendants, that because the threatened injury will not affect the plaintiffs jointly, but only severally, the plaintiffs cannot properly join in an action to yestrain the defendants from committing it.

Since we hold that Darling Place ” is still a public way, which the defendants cannot lawfully obstruct, and that an action may be maintained by an owner of a' lot abutting on it,to prevent the defendants from obstructing it as threatened, the question whether there is a misjoinder of plaintiffs is of very little importance. It is sufficient to say that a similar objection was ruled against the defendants in Barnes v. JRa-ome, supra. In that case, each plaintiff held his property affected by the nuisance complained of, in severalty. One used his property for wharf purposes; another for operating a steam mill; another for warehouse purposes; and still others as yards for ship-building. The court said: “Nor do we see any objection to such persons joining in a suit as parties complainants. As the erection of the nuisance would cause private and special damage to each of the complainants, they have a common right to prevent its erection, or to abate it after it is built.” (p. 466.) See also Williams v Smith, supra, where (although the fact does not distinctly appear in the report of the case) the individual plaintiffs had no joint interest in the lots affected by the threatened nuisance, but each owned one of said lots in severalty.

Some other questions were discussed by counsel on the argument; but they are unimportant, if the views above expressed are correct. Ve do not deem it necessary to consider those questions.

It is freely conceded that the learned counsel for the defendants have citéd many cases in which other courts have held doctrines opposed to some of our conclusions. But we *418 have followed former adjudications of this court, which have become rules of property, and which we are not at liberty to overrule or disturb.

By the Court. — The order of the circuit eoui’t denying the motion to dissolve the injunction is affirmed.