City of Ashland v. Chi. & N. W. Ry. Co.

• Decision Date: 15 December 1899
• Parties: CITY OF ASHLAND v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

105 Wis. 398

80 N.W. 1101

CITY OF ASHLAND

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Appeal from circuit court, Ashland county; John Goodland, Judge.

Suit by the city of Ashland against the Chicago & Northwestern Railway Company to restrain defendant from obstructing a street, and for other relief. From a decree for defendant, plaintiff appeals. Reversed.

In 1857 the owners of the land covering the street in controversy platted the same, and filed and recorded such plat in the proper register's office. The street in question was named “Madison Avenue.” In 1887 the common council of Ashland changed its name to “Fourth Avenue West.” According to the scheme of the plat, the streets running parallel with the shore of the bay are called “streets,”--the first being named “Front Street”; the second, “Second Street,” and so on in numerical order, extending back from the bay. The streets running at right angles with the streets aforesaid are called “avenues.” Madison avenue, now known as “Fourth Avenue West,” runs in a southerly direction from the bay for nearly 1 1/2 miles, and connects the residence with the business portion of the city. That portion of Fourth avenue West more particularly in question in this action lies between Third and Sixth streets. That portion of Fourth avenue between Front and Third streets, prior to 1890, had been graded and planked, and generally used for street purposes. That portion lying to the southward of Sixth street had also been graded and improved prior to said date. Prior to 1892 that portion of Fourth avenue between Third and Sixth streets had never been improved. During that year the city caused a sidewalk to be built on the east side of Fourth avenue from Third to Fourth street, and the west side of said avenue from Fourth to Sixth street, which was used by pedestrians as they saw fit. The railroad track of defendant enters the city limits on the east, and extends westward across and over Fourth avenue between Third and Sixth streets. The Northern Pacific and Wisconsin Central Railroads also have tracks running parallel with defendant's on the north. Early in 1896 the defendant and other railroad companies removed said sidewalk. They were replaced by the city and maintained until February, 1897, when they were again torn up by the companies, and a fence erected across said avenue between Fourth and Sixth streets, completely obstructing it. The city brings this action to compel the defendant to remove the fence and restore the sidewalk, and asks an injunction restraining the defendant from obstructing the avenue. The defendant set up, and the court found, that in the year 1860 the owners of the plat presented a petition to the county board, asking for a vacation of a portion of said plat, including the part involved in this suit, and by resolution the board attempted to vacate it; that after the date of said resolution, and for about 20 years, the proper officials assessed said property as acreage property; that said street, between the north line of Sixth street and a point halfway between Third and Fourth streets, was never worked or traveled by teams; that prior to the organization of the city of Ashland the town authorities erected a hose house between Third and Fourth streets, in the limits of Fourth avenue; that prior to 1887 the Milwaukee, Lake Shore & Western Railway Company, to whose rights the defendant succeeds, laid its tracks across Fourth avenue, as before stated; that in said year said company and the other railway companies mentioned entered into a contract in writing with the city whereby it was agreed that the city should take the necessary steps to vacate that part of Fourth avenue lying between the north line of Sixth street and a point halfway between Third and Fourth streets, and in consideration of such vacation the railroad companies agreed to defray the expense of grading and constructing an undercrossing on Vaughn avenue, being the next street west of Fourth avenue, and to pay the expenses of a box culvert to drain a street; that the said Lake Shore Company paid its proportion of said expenses to the city (shown by the evidence to be $782.97), and performed all the stipulations of its said agreement; that on December 1, 1887, the city passed an ordinance in form vacating said part of said avenue. This ordinance was conceded to be invalid because of failure to observe charter regulations. The seventh finding is to the effect that said company, relying upon the action of the county board in 1860 and of the common council in vacating said street, laid out and expended large sums of money in the construction of its yard, and in building an iron bridge over Vaughn avenue, and in paying the expenses of excavating said avenue and constructing said box culvert. On June 26, 1888, the council passed an ordinance repealing the ordinance of December 1st, and thereafter constructed the sidewalk before mentioned. The money paid to the city by the Lake Shore Company was not paid until after the repeal of the ordinance attempting to vacate the street. The trial court decided that the city was estopped, under the circumstances, from claiming that the part of the street in question was not vacated, and entered judgment dismissing the complaint. Due exceptions to the findings were filed. The plaintiff appeals from the judgment.

E. E. Brossard and Gleason & Sleight, for appellant.

Tomkins & Merrill and Fish, Cary, Upham & Black, for respondent.

BARDEEN, J. (after stating the facts).

It was conceded on the argument that the action of the county board in 1860, and the action of the city council of Ashland in 1887, in attempting to vacate the part of the street in question were void and of no effect. This leaves the main question to be considered,--whether the city is estopped from claiming this part of the street to be a public highway. Before proceeding to determine that question, we will notice a point raised by the defendant. It is said that there is no evidence in the record to show that the city has ever accepted that part of the street attempted to be vacated as a street. We do not see how the defendant is in a position to raise that question. The petition of the railroad company, and subsequent agreement with the city, relied upon as creating an estoppel, recognize the existence of this street. If the facts shown as claimed are sufficient to constitute an estoppel, this question is of no importance. If they are not, then, under well-settled legal principles, the city was not obliged to signify its acceptance until the time arrived when that part of the street would be required for use. Reilly v. City of Racine, 51 Wis. 526, 8 N. W. 417;State v. Leaver, 62 Wis. 387, 22 N. W. 576;City of Racine v. Chicago & N. W. Ry. Co., 92 Wis. 118, 65 N. W. 857. The filing by the owners of the land of the plat showing the streets, in the way pointed out by the statute, was a dedication to public use. Acceptance is in time, if made any time before the...