Kennedy v. Barnish

• Decision Date: 09 November 1943
• Citation: 244 Wis. 137,11 N.W.2d 682
• Parties: KENNEDY et al. v. BARNISH et al.
• Court: Wisconsin Supreme Court

244 Wis. 137

11 N.W.2d 682

KENNEDY et al.

v.BARNISH et al.

Supreme Court of Wisconsin.

Nov. 9, 1943.

Appeal from a judgment of the County Court of Columbia County; Elton J. Morrison, Judge.

Action by Edna Kennedy and others against Milton Barnish and others for damages caused by alleged trespass on realty. Judgment for plaintiffs, and defendants appeal.-[By Editorial Staff.]

Judgment reversed and cause remanded with directions to dismiss the action.

Action commenced June 6, 1942, by plaintiffs-respondents against defendants-appellants for damages caused by alleged trespass by defendants on a portion of Green street in the plat of Edgewater Beach addition to the village of Pardeeville. The defendant Krinke was hired by the village board to grade a portion of said street. The other defendants are members of the village board. The plaintiffs claim title to the land upon which the alleged trespass was committed.

Prior to June 30, 1928, Frank D. Kennedy (through whom plaintiffs claim title) caused to be platted the Edgewater Beach addition to the village of Pardeeville. The plat is certified by Mr. Kennedy as of June 30, 1928. Thereafter, he submitted the plat to the board of trustees for approval pursuant to sec. 236.05(1), Stats.1927. The plat has the following endorsement thereon:

“Admitted to the village of Pardeeville as Edgewater Beach addition by resolution by unanimous vote of the village board in regular session, April 16, 1929.

“(Signed) H.P. Thompson “Village Clerk.”

The resolution adopted by the village board is as follows: “Resolved by the village board in regular session assembled that the plat of Edgewater Beach addition to the village of Pardeeville, Wis., presented by Frank D. Kennedy of said village to the village board for acceptance be, and the same is hereby accepted: Provided, however, that the streets, drives, courts, parks or bridges shown on said plat are not dedicated to the public, but are reserved for the sole use in common of the owners of the lots in said Edgewater Beach addition. The village of Pardeeville assumes no liability whatsoever on account of said streets, drives, courts, parks or bridges, or as to the care and maintenance of any part of the said addition.”

Mr. Kennedy recorded the plat in the office of the register of deeds of Columbia County May 24, 1929, and thereafter sold and conveyed several lots in said plat, describing the land conveyed by lot and block numbers of Edgewater Beach addition. On October 7, 1941, the village board, on the petition of Robert Munchow, an owner of several lots in the addition, to open Green street, adopted the following resolution: “Resolved that the following streets, being platted in the plat of Edgewater Beach addition to the village of Pardeeville, namely, (1) Green street and (2) Franklin street, be and the same are hereby accepted as public streets and dedicated to the public use.”

On May 26, 1942, the village board authorized the improvement of part of Green street “from its intersection with Lake street on the south, to Franklin street on the north, in the Edgewater Beach addition to the village of Pardeeville.” That part of Green street mentioned in the above resolution is the premises upon which the alleged trespass occurred. Thereafter, the street committee hired defendant Krinke to grade that portion of Green street. Krinke started to grade, whereupon plaintiffs commenced this action against Krinke and the members of the village board.

The case was tried to the court, who made findings of fact and conclusions of law to the following effect: The first four findings cover in substance facts as above stated, concerning which there appears to be no dispute.

“(5) The street committee of the village subsequently notified the plaintiffs, present owners of the land who inherited the same upon the death of Frank Kennedy, that Green street would be opened up and improved, and plaintiffs' attorneys promptly notified the street committee in writing that any prior offer to dedicate the street had been revoked and that a committee would be treated as trespassers.

“(6) On May 29, 1942, upon orders received from the village street committee defendant Krinke proceeded to grade and improve said Green street, which prior to that time had not been opened up or improved by the village and which prior to that time the plaintiffs, the record owners, had continued to use as agricultural land and had prior to said time planted trees, berries and asparagus on said street. I further find that said acts of said trespassers were under the direction of defendants Kamrath and Clark and were with the knowledge and consent and full approval of each of the other defendants.

“(7) I find that the amount of damages caused by said trespass was in the sum of $75.

“(8) I further find that the plat was irregular in that it was not recorded within thirty days of its approval by the village board and in various other ways was irregular in failing to comply with the provisions of sec. 236.02 of the 1927 Statutes.

“(9) I find that the defendants threatened to further trespass and were, in fact, continuing to trespass upon the lands of the plaintiffs and that the injury was substantial and irreparable in that the damages cannot be accurately measured by any certain pecuniary standard.

“(10) I further find that a continuance of the trespass would not only cause substantial and irreparable injury but in addition would cause a multiplicity of actions.”

As conclusions of law the court found that there was no dedication of streets by the plat because the village refused to accept the dedication of the named streets for the public; that defendants and each of them were trespassers; that the trespass was illegal and without justification in law; that each of the defendants is jointly liable for the damages...