36 N.W.2d 61 (Wis. 1949), In re Vacating Plat of Chiwaukee

Citation:36 N.W.2d 61, 254 Wis. 273
Opinion Judge:The opinion of the court was delivered by: Broadfoot
Party Name:In re VACATING PLAT OF CHIWAUKEE. BAURER et ux. v. SOKOLOFF et al.
Attorney:Lepp & Phillips, of Kenosha, for appellant.
Case Date:February 15, 1949
Court:Supreme Court of Wisconsin
 
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Page 61

36 N.W.2d 61 (Wis. 1949)

254 Wis. 273

In re VACATING PLAT OF CHIWAUKEE. BAURER et ux.

v.

SOKOLOFF et al.

Supreme Court of Wisconsin

February 15, 1949

Page 62

Lepp & Phillips, of Kenosha, for appellant.

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

[254 Wis. 276] 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

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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 public highway, nor has there ever been any legal acceptance thereof by the town board of Pleasant Prairie. On April 20, 1945, an application was filed with the town clerk of said town to have Chiwaukee Terrace designated and maintained as a public highway. On August 10, 1945, which was more than ten days after the filing of the application, the town board, by resolution, accepted the road to maintain as other town roads. The application on its face does not appear to be signed by six or more freeholders residing within the limits of such plat, as required by sec. 80.38, Wis. Stats.

As to the third contention, the recording of the plat and conveyance of lots by the owner with reference to the plat constituted the granting of an easement to the purchasers of lots within the subdivision to ingress and egress over said private roadway in common with other lot owners, and the original proprietors and their grantees are estopped to deny the legal existence of such rights of ingress and egress. Kennedy v. Barnish, 1943, 244 Wis. 137, 11 N.W.2d 682; Maas v. Schwaab, 1944, 246 Wis. 102, 16 N.W.2d 380. The trial court recognized the easement in its order and preserved the same over the twenty-foot...

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