Jarstad v. Morgan
| Decision Date | 07 January 1880 |
| Citation | 4 N.W. 27,48 Wis. 245 |
| Parties | JARSTADT v. MORGAN |
| Court | Wisconsin Supreme Court |
Argued December 20, 1879
APPEAL from the Circuit Court for Manitowoc County.
Ejectment. Defendant appealed from a judgment in favor of the plaintiff. The case is sufficiently stated in the opinion.
Reversed and cause remanded.
For the appellant, there was a brief by Nash and Schmitz, and oral argument by Mr. Nash:
1. Both the deed under which plaintiff claims, and that under which defendant claims, refer to the village plat of Clark's Mills; and defendant's deed was duly recorded several years before plaintiff's was executed. Therefore, not only did defendant acquire title to the south half of River street, but the plaintiff made his subsequent purchase with notice of that fact. Hegar v. C. & N.W. Railway Co., 26 Wis. 624; Weisbrod v. Same, 21 Wis. 602; Pettibone v. Hamilton, 40 Wis. 402; Dillman v Hoffman, 38 Wis. 559; Salter v. Jonas, 39 N. J L., 469; 18 Wis. 35; 37 id., 662; 105 Mass., 328; 109 id., 292; 114 id., 577; 120 id., 349; 37 Conn. 229; 8 Bush (Ky.), 679; 9 id., 137; 10 R. I., 437; 37 Mo., 18; 49 id., 100. 2. The plaintiff, having himself offered the record of the plat in evidence, is estopped to say that it was not duly recorded. 1 Greenl. Ev., § 571; Bigelow on Estop., 609, 610. 3. Where a proprietor of lands makes and records a plat of the same, dividing them into village lots, and bounding the lots upon streets represented on such plat, and afterward conveys portions of the land by reference to the recorded plat, his grantee takes to the center of the streets bounding the land conveyed, although such plat is not entitled to record. Simmons v. Johnson, 14 Wis. 523; Warden v. Blakley, 32 Wis. 690; Fox v. Union Sugar Refinery, 109 Mass., 292.
For the respondent, there was a brief by H. G. & W. J. Turner, and oral argument by W. J. Turner. To the point that the record of the village plat, not properly certified, was incompetent evidence for the purpose of establishing a legal dedication, they cited R. S. 1849, ch. 41; Vilas v. Reynolds, 6 Wis. 214; Gardiner v. Tisdale, 2 Wis. 153; Emmons v. Milwaukee, 32 Wis. 434.
The land which the plaintiff seeks to recover in this case, is a strip laid out and designated on the plat of the village of Clark's Mills as "River street." The defendant owns lots in block 1, abutting on the north on this street. Both parties claim under conveyances from Stephen S. Clark, one of the original proprietors, who made the plat. On the part of the plaintiff it is said that the plat was not properly certified and acknowledged so as to entitle it to record, and therefore did not operate as a grant of the land to the public for a street, and that he took the same under his conveyance. Both the deeds under which the parties claim the premises refer to the village plat. The defendant's deed conveys lots 1, 2, 3 and 4 in block 1, "according to the Clark's Mills village plat on record." In the plaintiff's conveyance the second course and distance describing the land is to commence "at the northwest corner of a piece of land heretofore deeded to Mary Carr; thence easterly, on the north line of said Carr land, to the northwest corner of lot 11, block 1, in the village of Clark's Mills, on the south side of the Manitowoc river, about 22 rods; thence northerly on the west line of said block 1 to the northwest corner thereof, being 20 rods; thence easterly on the north line of said block 1 about twenty rods, to the center of Main street; thence northerly," etc.
The record states that the plaintiff, for the purpose of proving the locality of the premises described in the complaint, offered in evidence the record of the plat of the village of Clark's Mills. Undoubtedly, under the decisions of this court, this plat could be resorted to for the purpose of identifying the land conveyed (Vilas v. Reynolds, 6 Wis. 214; Simmons v. Johnson, 14 Wis. 523; Fleischfresser v. Schmidt, 41 Wis. 223); but in this case the plaintiff, in order to explain his deed and establish his title to the strip in question, introduced the record of the plat. Under these circumstances, the plaintiff himself having relied upon the record to establish his title, his proof being fatally defective without the record, the question arises whether, when the defendant relies on the same record to show that there was, upon the north side and adjoining his lots, a street or highway, the plaintiff is in a position to say that the record is incompetent to prove that fact. It seems to us that he is estopped from taking the objection. Unless this is so, the plaintiff in effect says to his adversary: This record produced by me is sufficient for my purpose; it is good to establish my title to the premises; but it can prove nothing in your favor, because the original plat was not so certified and acknowledged as to entitle it to record. Of course, the plaintiff might have produced the plat itself to make good his title, and not have resorted to the record. But this he did not see fit to do, but put the record itself in evidence to make good his case. He must now stand by that record for whatever it tends to prove. That this record tends to show that the original proprietors intended there should be a street adjoining the defendant's lots on the north, which is called on the plat "River street," is a fact that is indisputable.
Further, it appears by the village plat that a certain quantity of land was surveyed and divided into blocks by the proprietors, and that block 1 was subdivided into lots. There were likewise streets laid out and named, which were fully described on the plat.
It does not appear that Mary street on the west and River street on the north of defendant's lots were ever opened and used by the public as highways. But it is absolutely essential for the enjoyment...
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