Johnston v. Lonstorf

Cassoday, O. J.

It is conceded that the recording of the plat of Grand Avenue Heights addition in 1883 dedicated to the public use the streets and alleys marked thereon as such. Pettibone v. Hamilton, 40 Wis. 402 ; Tilly v. Mitchell & L. Co. 121 Wis. 1, 6 , 98 N. W. 969 . The plaintiffs respectively purchased the lots mentioned by the description of the same as given on said plat. It has long been settled in this state that the owner of a lot bounded by a public street within a recorded village or city plat takes title to the center of the street, subject to the public easement. Kimball v. Kenosha, 4 Wis. 321 ; Milwaukee v. Milwaukee & B. R. Co. 1 Wis. 85; Hegar v. C. & N. W. R. Co. 26 Wis. 624 ; Norcross v. Griffiths, 65 Wis. 607 , 27 N. W. 599 , 606; Chicago & N. W. R. Co. v. Milwaukee, R. & K. E. R. Co. 95 Wis. 561, 568 , 70 N. W. 678 ; Smith v. Beloit, 122 Wis. 396, 410 , 100 N. W. 877 ; Lins v. Seefeld, 126 Wis. 610, 614 , 105 N. W. 917, 919 . The same is true as to the owner of a lot bounded by a public alley. Elliott, Roads & Streets (2d ed.) §§ 23, 24, 25. It is there said, among other things:

“If the alley is a public one it is a highway, and, in general, is governed by the rules applicable to- streets. . . . Whatever may be the dimensions of a way, if it be open to the free use of the public it is a highway; nor is its character determined by the number of persons who actually use it for passage. The right of the public to use the way, and not the size of the way or the number of persons who choose to exercise that right, determines its character. An alley of small dimensions, actually used by only a limited number of persons, but which the public have a general right to use, therefore, may be regarded as a public way. . . . Where an alley is ordered to be opened by the proper municipal authority it is deemed to be one of the public ways of the mu *23 nicipality. The right of eminent domain may he exercised in opening alleys in substantially the same manner as in opening streets. . . . The rights and duties of a municipal corporation respecting alleys are substantially the same as. those respecting streets.”

- The lot of the plaintiff Gowdery described is hounded on the south by the portion of the alley in question, and twenty-five feet of the lot of the plaintiff Johnston described is hounded on the east by the west end of the portion of the alley in question. The mere fact that that portion of the alley was and is a cul-de-sac did not preclude it from being a public alley. Schatz v. Pfeil, 56 Wis. 429, 435, 436 , 14 N. W. 628 ; Mahler v. Brumder, 92 Wis. 477, 483 , 66 N. W. 502 . The right of abutting owners to have a public street or alley remain open is not merely that they may use the same, but that all persons may use it as a public street or alley, free from all claim or interference of .the original proprietor, or those claiming under him, inconsistent with such use. Lins v. Seefeld, 126 Wis. 610 , 105 N. W. 917, 919 ; Tilly v. Mitchell & L. Co. 121 Wis. 1, 6 , 98 N. W. 969 ; Smith v. Beloit, 122 Wis. 396, 409, 411 , 100 N. W. 877 , and cases there cited.

The important question presented is whether, by virtue of the proceedings had, the common council and mayor had authority to vacate and close up the portion of the alley in question-against the protest of the plaintiffs as such abutting owners, and without compensation. It seems to be pretty firmly settled that, where a public street or alley has been legally established, it can only be vacated,- if at all, in the manner prescribed by statute. Elliott, Eoads & Streets (2d ed.) § 25; 1 Lewis, Em. Dom. (2d ed.) § 134a; Cromwell v. Conn. B. S. Q. Co. 50 Conn. 470 ; Miller v. Corinna, 42 Minn. 391 , 44 N. W. 127 ; St. Louis, A. & T. H. R. Co. v. Belleville, 122 Ill. 376 , 12 N. E. 680 ; Moffit v. Brainard, 92 Iowa, 122 , 60 N. W. 226 ; Louisville v. Bannon, 99 Ky. 74 , 35 S. W. 120 . *24 The statutes authorize “the common council of every city” (see. 927, Stats. 1898), “upon petition in writing of the owners of lots or land on any street or alley,” to “discontinue such street or alley or any part thereof; provided, that all the owners of lots or land on the portion of such street or alley proposed to be vacated and two thirds of the owners of lots or land on the remainder thereof shall sign such petition and not otherwiseSec. 904, Stats. 1898. It is true that the words “the common council of every city,” found in sec. 927, Stats. 1898, and above quoted, applied only to cities organized “under general law;” but that section, as amended, now applies to “the common council of every city, whether acting under the general law or under a special charter.” Sec. 1, ch. 169, Laws of 1903, and ch. 394, Laws of 1905. This being so, it evidently applies to the city of Milwaukee.

It is very obvious from the foregoing statement that the proceedings taken did not bring the case within the statute quoted, since the petition for vacating the portion of the alley in question was never signed by any of the five owners of land abutting upon that portion of the alley, except Mrs. Lonstorf, nor by two thirds or any of the owners of lots or lands abutting upon the portion of the alley east of Twenty-third street. Of course, where a portion of a street or alley is vacated and closed up at the request of all the owners of lands abutting thereon, the question as to compensation to such owners is thereby eliminated. This court has held that: “Where the common council of a city is authorized to vacate or discontinue streets, it must proceed, if the charter does not otherwise provide, in the manner prescribed by” secs. 904, 927, Stats. 1898. James v. Darlington, 71 Wis. 173 , 36 N. W. 834 . That case was distinguished in Baines v. Janesville, 100 Wis. 369, 375, 376 , 75 N. W. 404 , but expressly followed a.nd sanctioned in Ashland v. C. & N. W. R. Co. 105 Wis. 398, 404 , 80 N. W. 1101 , where it was held: “Streets can be vacated only by comuliance with statutory requirements, and, *25 when the charter does not prescribe how such power can be exercised, the provisions of” secs. 904, 927, Stats. 1898, “are to be followed.” As already indicated, the amendment to sec. 927 makes it certain that the section- as amended applies to the city of Milwaukee.

It'is claimed on the part of the city and the other defendants that under the charter the common council had power to vacate streets and alleys without complying with the general provisions of the statute mentioned.. In support of such contention-counsel seem to rely upon Brandt v. Milwaukee, 69 Wis. 386, 388 , 34 N. W. 246 . That was “an application to the circuit court by the owners of all lands on both sides of an alley ... to vacate the same.” The trial court found that it “had no jurisdiction to vacate an alley in that city,” and so dismissed the petition, and the judgment entered thereon was affirmed by this court on the ground “that the circuit court had no jurisdiction.” True, it was said in the opinion of the court in that case that among the police powers granted to the common council by the charter was “the power to vacate streets and alleys by ordinance or resolution,” subject to the “'restrictions on, the exercise of such power” therein contained ; but the question whether a street or alley, or a portion thereof, could be vacated against the protest of any of the owners of the lands abutting thereon, -and without compensation, was not there involved, much less decided or considered.

It is true that The charter, in general terms, gives to the common council power to “open, widen, straighten, and vacate streets and alleys, and establish and alter the grade thereof.” Subd. 32, sec. 3, ch. IY, Milwaukee Charter. The charter also declares that “the common council shall have the power to lay out public squares, grounds, streets, and alleys, and to extend, enlarge and widen or vacate the same,” upon the petition of “ten or more freeholders” and residents of the ward, as therein prescribed. Sec; 1, ch. YI, Milwaukee Charter. JBut there is nothing in that section requiring the consent of, *26 or compensation to, sncb abutting owners. The charter also declares that tbe common council shall have power to vacate,, in whole or in part, such streets and alleys, provided the necessity therefor be first established by the verdict of a jury as provided therein for laying out public squares, grounds,, and streets. Sec. 22, ch. ,VI, Milwaukee Charter. Other sections of the same chapter of the charter provide for giving, notice to owners and occupants of lands abutting upon such street or alley and the selection of a jury to determine such necessity, and, when determined, the board of public works-are required to ascertain and determine “the amount of damages to be paid to the owner or owners of the property proposed to be tajeen and also what lands or premises wiíl be benefited by such talcing, and make a report of their assessment of such damages and benefits to the council.” Secs. 3, 4, ch. YI, Milwaukee Charter. It will be observed that this relates to damages and benefits to the owner or owners of lands-so taken, but does not in terms relate to the vacation of a street or alley.

But counsel for the defendants contend that under the language of the sections giving the common council power to vacate streets and alleys, “the same procedure is to be followed in vacating an alley as in laying out, extending, enlarging, or widening a street or alley until after the jury have made their report.” The petition in the instant case seems to. have been drawn upon that theory; but no proceedings were ever had to secure compensation to such abutting owners as-refused to consent to the vacation of the portion of the alley Avest of Twenty-third street. The question recurs whether, under the charter or otherwise, the common council had power to vacate that portion of the alley in question without compensation to the protesting OAvners of lands abutting thereon. It is said by a learned writer on such matters that the OAvners of lands abutting upon a public highway, “Avho have lawfully and in good faith invested money or obtained property inter *27 ests in tbe just expectation of tbe continued existence of tbe highway,” are entitled to tbe benefit of tbe old maxim of tbe common law, “once a highway, always a highway.” Elliott, Roads & Streets (2d ed.) § 871.- Another leading text-writer on such matters declares that “a street cannot be closed so as to prevent access to abutting property, -without the consent of the owners of such property, or compensation paid.” 1 Lewis,. Em. Dom. (2d ed.) §§ 134, 226a;.. There are plenty of adjudications to the same effect. Indianapolis v. Croas, 7 Ind. 9 ; Rensselaer v. Leopold, 106 Ind. 29 , 15 N. E. 761 ; Bigelow v. Ballerino, 111 Cal. 559 , 44 Pac. 307 ; Heinrich v. St. Louis, 125 Mo. 424 , 28 S. W. 626 ; Egerer v. N. Y. C. & H. R. R. Co. 130 N. Y. 108 , 29 N. E. 95 ; Willamette Iron Works v. Oregon R. & N. Co. 26 Oreg. 224 , 37 Pac. 1016 ; Johnston v. Old Colony R. Co. 18 R. I. 642, 29 Atl. 594 ; Pearsall v. Eaton Co. 74 Mich. 558 , 42 N. W. 77 ; Horton v. Williams, 99 Mich. 423 , 58 N. W. 369 . In this last case the facts were very much like the facts in the case at bar, and it was held in effect that “abutting lotowners have an interest in the land embraced in a public alley, and the city' council has no right, under” a statute authorizing it to vacate alleys in the city, “to vacate a portion of said alley, without first compensating said abutting lotowners for any damages by them sustained, though their lots may not abut upon the portion so vacated.” To the same effect: Kimball v. Kenosha, 4 Wis. 321, 330 ; Lathrop v. Racine, 119 Wis. 461, 473, 474 , 97 N. W. 192 ; Smith v. Beloit, 122 Wis. 396, 409, 411, 416 , 100 N. W. 877 , and eases there cited. Some courts go to the extent of holding that, where the object of the proceeding is to close the alley and allow the land therein to revert to the abutting lotowners for a mere money consideration to be paid to the municipality, it does not constitute “a public use for which private property can be taken from one citizen and given to another.” Louisville v. Bannon, 99 Ky. 74 , 35 S. W. 120 ; Moose v. Garson, 104 N. C. 431 , 10 S. E. 689 . Most of the cases cited, how *28 ever, go upon the theory that the municipality, when authorized by the legislature, has such power and control over public streets and alleys that it may, in the manner prescribed, vacate the same or any part thereof, upon making compensation to the abutting owners.

It follows from what has been said that the trial court improperly dissolved the preliminary injunction.

By the Gourt. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.