Maas v. Schwaab

• Decision Date: 14 November 1944
• Citation: 16 N.W.2d 380,246 Wis. 102
• Parties: MAAS et al. v. SCHWAAB et al., Members of Town Board.
• Court: Wisconsin Supreme Court

246 Wis. 102

16 N.W.2d 380

MAAS et al.

v.SCHWAAB et al., Members of Town Board.

Supreme Court of Wisconsin.

Nov. 14, 1944.

Appeal from a judgment of the Circuit Court for Waukesha County; Edward J. Gehl, Judge.

Affirmed.

Action by Bena E. Maas and others, landowners, against Walter F. Schwaab and others, as members of the Town Board of the Town of Summit, Waukesha county, to enjoin the removal of a gate placed by one of the plaintiffs at the entrance to a strip of land claimed by the plaintiffs to be a private road dedicated to the use of the abutting owners. From a judgment entered April 6, 1944, dismissing the complaint, the plaintiffs appeal. The facts are stated in the opinion.

Bloodgood & Passmore, of Milwaukee (William E. Burke, of Milwaukee, of counsel), for appellants.

Scott K. Lowry, of Waukesha, for respondents.

FOWLER, Justice.

Action in equity by landowners to enjoin threatened removal by the Town Board of a gate erected by one of the plaintiff landowners in November, 1941, across the opening into a street dedicated by a recorded plat of Venice Park, bordering Nemahbin Lake in Waukesha county. The plaintiffs claim the street is a private road for the use only of the owners of the abutting land. The board claims that the plat dedicates the street to the use of the public as a public highway.

The main features of the plat are that the land owned by the plaintiffs consists of Block A not divided into lots lying east of the street entrance to which use by the public the plaintiffs have blocked, and lot B, divided into Lots 1, 2 and 3, lying to the west. The street is a cul de sac, closed at the north and abutting on unimproved wooded land, and opening at the south into an admitted highway dedicated by the plat, to the south of which lie eighteen abutting lots. The plat contains no words of express dedication. The street is shown on the plat as thirty feet wide and is denominated on the plat as ‘Park Avenue.’ The other street conceded to be a public highway, is denominated on the plat as Venice Boulevard.

On the trial the court found that the thirty foot strip is a public highway and dismissed the complaint on the merits. Besides the plat itself the evidence shows that the plat was recorded by the then owner of the platted land in 1906. The thirty foot strip and the adjacent land was then low meadow or pasture land. The plattor cleared the strip of brush, planted trees on the east side of the strip and left standing some trees then on the other side. The plaintiff landowners have put gravel on the south end. No money except that contributed by residents of the plat has ever been expended on the strip. The plattor conveyed the lands in the plat by descriptions according to the plat and all other conveyances of land included in the plat have been made by plat descriptions since the recording of the plat. The land included in the plat has...