Arnold v. Volkman

• Decision Date: 18 October 1904
• Parties: ARNOLD ET AL. v. VOLKMAN.
• Court: Wisconsin Supreme Court

123 Wis. 54

101 N.W. 158

ARNOLD ET AL.

v.VOLKMAN.

Supreme Court of Wisconsin.

Oct. 18, 1904.

Appeal from Circuit Court, Eau Claire County; James O'Neill, Judge.

Action by Ernest Arnold and another against Chris Volkman. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This is an action in equity to quiet the title to a small piece of land, about 33 feet in width, in the city of Eau Claire, of which the plaintiffs claim ownership and possession and to which the defendant makes claim. The defendant, by his answer, claims title in himself, but also alleges facts which are claimed to constitute an estoppel. The action was tried by the court and the material facts were found, in substance, to be as follows: In the year 1870 the Eau Claire Lumber Company, being the owner of land in the city of Eau Claire, made and recorded a plat of the same, upon which plat a street called First avenue ran north and south, parallel with and a short distance west of the Chippewa river, and two streets, named, respectively, Ann and Ferry streets, crossed it at right angles, running to the river; block 19 being bounded on the north by Ferry street, south by Ann street, east by Chippewa river, and west by First avenue. Upon said plat a public street 66 feet in width, running east and west, was marked through the north part of block 19, extending from First avenue to the river, which street was then occupied and used for public travel, and upon it was the west approach of a public bridge across the Chippewa river. The south half of this strip of land, or street, is the land now in dispute. This street was not named upon the map, but became generally known as Bridge street, and was continuously used as a street and an approach to the bridge up to the year 1880. In June, 1879, the Eau Claire Lumber Company conveyed to the plaintiff a parcel of land in block 19 immediately south of Bridge street, describing it as follows: “Commencing at the point where Bridge street and First avenue intersect, and running south on the line of block number nineteen (19) seventy-five (75) feet; thence to the river on a line parallel with Bridge street; thence on the line of the river to Bridge street; thence on the line of Bridge street to the place of beginning--being a part of block number nineteen (19), in Eau Claire Lumber Company's corrected plat of Chapman & Thorp's Second addition.”

The situation will be made more clear by reference to the accompanying map, on which the strip called Bridge street is marked “A” and the parcel purchased by the plaintiff in 1879 is marked “B.” In the year 1880 the bridge was swept away by a flood, but was rebuilt in the same year; but, when rebuilt, its west approach was placed upon Ferry street, and the parcel of land formerly known as Bridge street ceased to be used as a street, being in fact largely swept away by the flood, and thereafter Ferry street was familiarly known by the public as Bridge street, though the name was never legally changed. In March, 1884, the Eau Claire Lumber Company deeded to the city the piece of land formerly called Bridge street, by metes and bounds, for consideration expressed of $500, and it was described in the deed as land formerly occupied as a street; and in 1887 or 1888 the city constructed a public sewer in said parcel of land, emptying into the Chippewa river, and did some filling thereon, and has continuously maintained said sewer thereon. In February, 1894, the plaintiffs sold to the defendant the piece of land marked “B” on the plat, and described the same in the deed as follows: “Commencing at the southeast corner of First avenue and Ferry street, in block No. 19, in Eau Claire Lumber Co.'s corrected plat of Chapman & Thorp's Second addition to Eau Claire city; thence running southerly, on a line parallel with First avenue, 75 feet; thence easterly, on a line parallel with said Ferry street, to the Chippewa river; thence northerly, along the line of low-water mark of said Chippewa river, to the southerly line of said Ferry street; thence westerly, along said Ferry street, to the point of beginning--the same being that part of block No. 19 in said addition lying immediately south of where the old bridge entered Ferry street, and extends 75 feet along the easterly side of said First avenue.” In this deed the words “Ferry street” were used by mistake for the words “Bridge street,” but the deed has never been reformed, and no counterclaim is interposed in the present action for...