Burbach v. Schweinler

• Decision Date: 12 December 1882
• Citation: 14 N.W. 449,56 Wis. 386
• Parties: BURBACH v. SCHWEINLER.
• Court: Wisconsin Supreme Court

56 Wis. 386

14 N.W. 449

BURBACH

v.SCHWEINLER.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Jefferson county.I. W. & G. W. Bird, for respondent, Catharina Burbach.

Harlow Pease, for appellant, Charles Schweinler.

ORTON, J.

The mortgage sought to be foreclosed was of 116 feet of lots 1 and 2, in block 14, of the village of Jefferson, commencing on the east side of said lots, and running westwardly towards the west line of the same. The answer alleges that the mortgage was given to secure the payment of the purchase money of the above premises, together with 24 feet commencing at the west line of the above description on lots 1 and 2, and running west 24 feet, including 2 feet off from the east end of lot 7 in said block. The fact material in this description of the last-mentioned premises is that it inclndes the whole alley, 16 feet wide, between lots 1 and 2, 7 and 8. As a counterclaim against the money secured by the mortgage the answer alleges that a deed with covenants of seizin and right to convey, and against incumbrances, was given for the whole of said premises by the said plaintiff to the defendant in consideration of said purchase money, and that such covenants were broken, and the defendant suffered damages thereby in respect to said last-mentioned premises, by reason of an alley regularly laid out and dedicated to public use, 16 feet wide, running north and south between lots 1, 2, 3, and 4, and lots 5, 6, 7, and 8, of said block, by the original plat of said village, which constituted a perpetual easement on said premises, and that the defendant did not know of such alley at the time of the purchase, and that it was not used by the public, and that buildings and other improvements of a permanent character existed thereon, and that there was nothing to indicate the existence of such alley, but that the appearances indicated that there was no such alley

All the evidence of title introduced at the trial was the following: (1) There was a stipulation in effect that the county commissioners of Jefferson county purchased the land on which the plat of the village of Jefferson was laid out by virtue of an act of the territorial legislature of Wisconsin, approved January 12, 1838, and that they caused the same to be platted, and that the plat thus made was dated November 21, 1838, and recorded in the office of the register of deeds of said county, and that on the seventh day of February, 1846, one George F. Markley owned in fee-simple lots 1, 2, 7, and 8, in block 14, in the original plat of the village of Jefferson; (2) the record of the original plat of said village; (3) a part of the original record of the plat showing this block, saved from the burning of the register's office and records, which had been preserved and kept in said office; (4) a warranty deed from George F. Markley to one Isaac Savage, dated July 3, 1847, of lots 1 and 2, 7 and 8, comprising the north half of said block; (5) a warranty deed from said Savage and wife to one D. W. Hillyer of the same premises as last above mentioned, dated September 3, 1855; (6) a warranty deed from D. W. Hillyer and wife to Lydia W. Howes of the 116 by 132 feet of lots 1 and 2 as described in said mortgage, dated December 19, 1866; (7) a quitclaim deed from W. D. Hillyer and wife to one John Jung, dated May 12, 1868, of the 24 by 132 feet as lastly described in said deed from the plaintiff to the defendant and not included in the mortgage; (8) a warranty deed from Lydia W. Howes and A. F. Howes to John Jung, dated April 30, 1868, of the 116 by 132 feet of lots 1 and 2, as described in the mortgage; (9) a warranty deed from John Jung and wife to Nicholas Jung, dated June 11, 1874, of both of said tracts, the 116 by 132 feet, and 24 by 132 feet; (10) a warranty deed from Nicholas Jung and wife to Catharina Jung, afterwards the plaintiff, Catharina Burbach, dated June 20, 1874, of the whole of the last-named premises; (11) a warranty deed from Catharina Burbach to Charles Schweinler, the defendant, dated September 26, 1876. In all of these deeds the premises are described as lots or parts of lots, giving their numbers, in block 14, as they are designated and marked upon the original plat of said village. The plat being in evidence, the evidence of title by these successive deeds introduced by the defendant, shows that the defendant obtained by his deed from the plaintiff all that it purported to convey.

1. By the description of the premises according to the plat, the alley which appears thereon, and which may fall within the metes and bounds of the premises described, are necessarily excluded from the grant and the covenants of the deeds, and it would make no difference whether by the law at the time the plat was made the alley was a mere public easement, or the fee-simple title to the land was vested in the county or any other body or person for the public use. Whatever the alley was by the plat, that is excluded. The purchaser by a conveyance made according or by reference to the plat not only purchased subject to the streets, alleys, and other public grounds appearing thereon, but obtains by such purchase rights therein which may not be taken away or disturbed. If the conveyance is exclusively of a street or alley in reference to a plat on which it appears, it is subject to the public easement. In application of this principle to this case, if the fee of the land in the alley belonged to the adjacent lot-owners, these deeds are subject to the alley only as a public easement. But if the fee, by the law governing the platting of villages at the time, became vested in the county, nothing is...