LaWe v. City of Kaukauna

CourtUnited States State Supreme Court of Wisconsin
Citation35 N.W. 561,70 Wis. 306
PartiesLAWE v. CITY OF KAUKAUNA.
Decision Date13 December 1887

OPINION TEXT STARTS HERE

Appeal from circuit court, Outagamie county; GEORGE H. MYERS, Judge.

George W. Lawe brought this action of ejectment against the city of Kaukauna to recover possession of certain city lots. Judgment was rendered for the plaintiff in the circuit court, and the defendant city appealed.D. S. Ordway, for appellant.

Pierce & Moeskes, for respondent.

ORTON, J.

This is an action of ejectment against the city of Kaukauna to recover lots 7, 8, and 9, in block 13, in said city, which the city occupied and used for the landing of a swing-bridge across the government canal, and in connection with the street or highway leading to the same, and on which said bridge turned. The defense, besides the general issue, is that the plaintiff as the owner of said lots, dedicated them to the public use for such purpose, and that they had been used as a highway for over 20 years in connection with other former bridges across said canal. To these last defenses the evidence was addressed, and, to say the least, it was very uncertain and contradictory, and the jury, having found for the plaintiff, must have found these issues in his favor, and we think that the evidence warranted the verdict. We have examined the evidence with great care, and we do not think we would be justified in disturbing the verdict on the merits. The evidence is very voluminous, and much of it quite immaterial, and so mixed up, in view of both of these issues, that it is extremely difficult to make application of it. The jury and the learned judge before whom the case was tried were vastly more competent than this court can be to pass upon its general effect. We shall, therefore, consider only the alleged errors in the evidence and instructions, and even they, in the general confusion, are very difficult to clearly understand, or what of these the learned counsel of the appellant are disposed to urge before this court.

1. The first error presented in the brief of the learned counsel is that the court charged the jury, in effect, that no one but the owner, or his duly-authorized agent, could dedicate property to the public use. It is claimed that, although this proposition is abstractly correct, there was no evidence to which it was applicable; the fact that the plaintiff owned the premises being unquestionable. This fact was made an issue by the replication of the plaintiff that he did not own the premises for many years when the public user and dedication thereof were alleged to have taken place, and it was not unquestionable. The title of record was in fact out of the plaintiff for many years, and whether, notwithstanding this, he owned the premises, was a question in the case, and a question of fact, for the jury to decide, although, in passing upon it, the court should instruct the jury as to the law which should govern them in deciding it. Whether the plaintiff had such an interest in the premises as to be properly and legally called the owner, against the title of record, depended upon many facts and circumstances, proper to be considered by the jury, and it is doubtful whether the court would have been justified in withdrawing this issue from them. It was clearly no error, and could have done no harm, to so state the law correctly, upon an issue proper for the jury to pass upon. It is said, in the brief of the learned counsel, that this instruction was drawn upon the plaintiff's...

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8 cases
  • State ex rel. Roland v. Dreyer
    • United States
    • Missouri Supreme Court
    • June 21, 1910
    ...v. Portland, 14 Ore. 188; Parish v. Stephens, 1 Ore. 59; Penny Pot Landing, 16 Pa. St. 79; Gardner v. Tisdale, 2 Wis. 153; Lawe v. Kaukauna, 70 Wis. 306. Although the of land dedicated to public uses may be vested in the county, or in the owners of abutting lots, yet the officers of an inco......
  • Hicks v. City of Bluefield
    • United States
    • West Virginia Supreme Court
    • May 4, 1920
    ...by a municipal corporation for street purposes. Le Blond v. Peshtigo, 140 Wis. 604, 123 N.W. 157, 25 L. R. A. (N. S.) 511; Lawe v. Kaukauna, 70 Wis. 306, 35 N.W. 561; Mahon v. San Rafael Turnp. Road Co., 49 Cal. Tuller v. Detroit, 97 Mich. 597, 56 N.W. 1032; Armstrong v. St. Louis, 69 Mo. 3......
  • Flynn v. Beaverhead County
    • United States
    • Montana Supreme Court
    • June 17, 1914
    ...69 Mo. 309, 33 Am. Rep. 499; Mayor, etc., v. Fitzpatrick, supra; McCarty v. Clark County, 101 Mo. 179, 14 S.W. 51; Lawe v. City of Kaukauna, 70 Wis. 306, 35 N.W. 561; Tuller v. City of Detroit, 97 Mich. 597, 56 1033; Strong v. City of Brooklyn, 68 N.Y. 1; Elliott on Roads & Streets, supra. ......
  • Le Blond v. Town of Peshtigo
    • United States
    • Wisconsin Supreme Court
    • November 12, 1909
    ...were not the owners of such an interest in the fee as would bring them within the terms of section 3077, St. 1898. In Lawe v. Kaukauna, 70 Wis. 306, 35 N. W. 561, the plaintiff, who claimed an estate in fee, brought ejectment to recover certain lots which the city occupied and used for the ......
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