Baurer v. Sokoloff (In re Vacating Plat of Chiwaukee)

• Decision Date: 15 February 1949
• Citation: 254 Wis. 273,36 N.W.2d 61
• Parties: In re VACATING PLAT OF CHIWAUKEE. BAURER et ux. v. SOKOLOFF et al.
• Court: Wisconsin Supreme Court

254 Wis. 273

36 N.W.2d 61

In re VACATING PLAT OF CHIWAUKEE. BAURER et ux.

v.SOKOLOFF et al.

Supreme Court of Wisconsin.

Feb. 15, 1949.

Appeal from an order of the Municipal Court of Kenosha County; Edward J. Ruetz, Judge.

Proceeding by John E. Baurer and Meredith Kathleen Baurer, his wife, to vacate portions of the plat of Chiwaukee, etc., opposed by Morris A. Sokoloff and others. From an order vacating portions of the plat, opponents appeal.-[Editorial Statement.]

Affirmed.

WICKHEM, J., dissenting in part.Under date of December 22, 1947, John E. Baurer and Meredith Kathleen Baurer, his wife, filed a petition in the municipal court of Kenosha county to vacate portions of a plat of certain lands in the town of Pleasant Prairie, Kenosha county, Wisconsin. Notice of said application was duly published, posted and served as required by statute. The plat had been recorded in the office of the register of deeds on October 5, 1921. On July 13, 1948, the court entered an order vacating portions of the plat as prayed for in the application. Appellants, who are the owners of real estate within the subdivision, appeal from this order.

In 1921 John N. Penny and others caused certain lands in the town of Pleasant Prairie, Kenosha county, Wisconsin, to be surveyed, subdivided and mapped, and a plat thereof to be recorded. This plat shows a hundred-foot road designated thereon as ‘private’ running in an easterly direction. In 1926 a twenty-foot concrete strip running approximately in the center of the one-hundred-foot road was constructed by the original owners of the subdivision. This road was the only legal means of entrance and exit to the subdivision.

In May, 1921, Penny, the original owner, started the erection of a dwelling house entirely within the limits of the one-hundred-foot road and on the northerly side of the twenty-foot strip upon which the concrete roadway was later constructed. The house was completed in October, 1921, and has been occupied since that time. The house was located at the westerly edge of the subdivision where the road designated as ‘private’ entered the subdivision from a public highway known as ‘Sheridan Road.’ The original plat contained the following provision:

‘Party of the second part to have a perpetual easement in conjunction with the other owners of lots in said plat, to ingress and egress over the private rights of way designated on said plat and known as Chiwaukee Terrace and Lake Shore Drive.'

Chiwaukee Terrace is the name given to the road running in an easterly direction into the subdivision from Sheridan Road.

In 1932 the Northwestern Loan and Trust Company, a corporation, of Kenosha, Wisconsin, started proceedings to foreclose a mortgage it held on the premises described in the application herein and other lands. The Northwestern Loan and Trust Co. purchased the real estate covered by its mortgage at the foreclosure sale and received a sheriff's deed thereto on October 29, 1934.

Naoma F. Penny purchased the premises described in the petition herein from the Northwestern Loan and Trust Company. On August 16, 1947, Naoma F. Penny and her husband, John N. Penny, conveyed by warranty deed to the applicants, a tract of land two hundred seventy-five feet east and west and one hundred eighty-five feet north and south, the west line being the center of Sheridan Road and the south line being the south line of the one-hundred-foot strip.

Baurer and wife commenced this proceeding under the provisions of secs. 236.17 and 236.18 of the Wisconsin Statutes of 1947 to vacate that portion of the plat described in their deed with the exception of the twenty-foot strip surfaced with concrete.

Other facts will be stated in the opinion.

Lepp & Phillips, of Kenosha, for appellant.

Cavanagh, Stephenson, Mittelstaed & Sheldon, of Kenosha, for respondent.

BROADFOOT, Justice.

The appellants ask to have the order of the trial court dismissed for the following reasons: (1) That the entire one-hundred-foot strip of the Chiwaukee road is a public highway because of public use; (2) that the Chiwaukee road is a public highway by dedication and acceptance by the town board of Pleasant Prairie; (3) vacation of any part thereof should be denied because a perpetual easement to the entire one-hundred-foot width of the road was created and the applicants are estopped from denying its existence; and (4) that the trial court committed an abuse of discretion in its order.

As to the first contention, the trial court found that the public acquired no rights by user except over the twenty-foot concrete strip. This finding is in accord with the record.

As to the second contention, there was never any dedication of Chiwaukee road as a...