Blair v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 09 April 1901
• Citation: 85 N.W. 675,110 Wis. 64
• Court: Wisconsin Supreme Court
• Parties: BLAIR ET AL. v. MILWAUKEE LIGHT, HEAT & TRACTION CO.

110 Wis. 64

85 N.W. 675

BLAIR ET AL.

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Henry E. Blair and others against the Milwaukee Light, Heat & Traction Company for the condemnation of certain property held by defendant. From a judgment in plaintiffs' favor, defendant appeals. Affirmed.Ryan & Merton, for appellant.

Frame & Blackstone (W. J. Turner, of counsel), for respondents.

CASSODAY, C. J.

This is an appeal from an order appointing commissioners for the condemnation of a strip of land occupied by the defendant, and made upon the petition of the plaintiffs, as landowners. Such condemnation is resisted on the sole ground that the locus in quo is within the limits of what is known as Delafield street or highway, as located and laid out by the board of supervisors June 14, 1858, and that such occupancy has been authorized by the city. It is conceded that the original order of the supervisors, as it appears of record, and of itself, fails to describe the Delafield road, or any part of the strip of land here sought to be condemned. The contention is that the description in that order is ambiguous, and in fact absurd, and should be construed according to the actual survey made at the time, which is preserved in writing with the records of the town. That is to say, the words “thence north eight minutes, and four degrees west,” contained in the order, should be construed to mean “thence north eight degrees, four minutes east,” as contained in the survey; and so the words “north fifty-nine minutes, and two degrees west,” contained in the order, should be construed to mean “north fifty-nine degrees, two minutes west,” as contained in the survey; and so the words “thence north forty-nine minutes, thirty degrees west,” contained in the order, should be construed to mean “thence north forty-nine degrees, thirty minutes west,” as contained in the survey. In support of such contention counsel urge the well-recognized rule that courses and distances must yield to monuments, and in case of ambiguity practical construction may be resorted to. City of Racine v. Plow Co., 56 Wis. 539, 14 N. W. 599;Miner v. Brader, 65 Wis. 537, 27 N. W. 313;City of Racine v. Emerson, 85 Wis. 80, 55 N. W. 177;City of Madison v. Mayers, 97 Wis. 410, 411, 73 N. W. 43;Heinselman v. Hunsicker, 103 Wis. 12, 79 N. W. 23. It is claimed that the order in question contains such monuments. Thus, counsel calls attention to the fact that the order mentions as such monuments a “burr-oak tree,” also a “white-oak tree,” also a “bridge over Barnard's race,” and...