City of Jefferson v. Eiffler

• Decision Date: 06 March 1962
• Citation: 113 N.W.2d 834,16 Wis.2d 123
• Parties: CITY OF JEFFERSON, a Municipal Corporation, Appellant, v. Earl W. EIFFLER et al., Respondents.
• Court: Wisconsin Supreme Court

Page 834

113 N.W.2d 834

16 Wis.2d 123

CITY OF JEFFERSON, a Municipal Corporation, Appellant, v. Earl W. EIFFLER et al., Respondents.

Supreme Court of Wisconsin.

March 6, 1962.

Robert D. Sundby, Madison, for appellant.

Shea & Hoyt, Milwaukee, Ralph M. Hoyt, Hamilton T. Hoyt, Milwaukee, of counsel, for respondents.

Julian Bradbury, Madison, amicus curiae.

DIETERICH, Justice.

All other defendants joined in this action failed to answer and were in default. The documentary evidence was stipulated and there was no material conflict in the testimony of the witnesses. The evidence is voluminous. For the sake of brevity only those facts considered pertinent are recited.

The original plat of the village of Jefferson was recorded in 1838. It showed block 5 therein as consisting of eight lots, four on the east side of the block and four on the west, with a 16 foot alley down the center of the block from north to south.

'The commissioners who laid out and recorded said plat were appointed by the Wisconsin Territorial legislature (Acts of 1837-1838, No. 34) to lay out the seat of justice for Jefferson county * * * pursuant to Stats., I, ch. 169, 18th Congress, May 26, 1824, granting to counties * * * of the * * * territories the right of pre-emption to one-quarter section of government land for the establishment of seats of justice.' ¹

'On said plat, block 5 was shown as bounded on the east by Main street, on the south by Milwaukee street and on the north by Racine street, with a 16 foot alley running from north to south midway between the east boundary and the west boundary and the west boundary of the block.' ² Block 5 is bounded on the west by the Chicago Northwestern Railway Company right-of-way.

The City seeks a declaratory judgment against all private lot owners (the city owns the two northern lots on the west side of Block 5) in the block establishing that it holds an easement for alley purposes in the entire platted 16 foot strip. The only private owner to defend this action was Earl W. Eiffler, who owns the southern two lots on the east side of the block (lots 3 and 4) with some exceptions as to their respective total descriptions. Eiffler claims title to the south one half of the platted 16 foot alley strip abutting lots 3 and 4 by reason of a conveyance to him, by warranty deed dated and recorded June 13, 1958, of said lots containing the following language:

'All of lots 3 and 4, and the alley adjoining the same on the west side thereof, in block 5, of the original plat of the city of Jefferson [with certain exceptions].'

The stipulation sets forth that Eiffler traces his chain of title to Lucy Stamm who on March 26, 1885, was the owner of lots 3, 4, 5 and 6. On that date she conveyed lots 5 and 6 to one Abram Fernholz, exclusive of the alley, referring to the alley as being vacated. On June 13, 1887, by warranty deed, Lucy Stamm conveyed to Edward Mueller, lots 3 and 4 with the identical language relative to the alley quoted above. Edward Mueller conveyed said property to his son in 1921, again with this same language, and the son in turn conveyed to Eiffler. Though the above-mentioned deeds state that the alley in block 5 was vacated, there is no official record of such vacating. The City of Jefferson entered three exhibits. They consisted of affidavits of the register of deeds of Jefferson county, county clerk of Jefferson county and the city clerk of the city of Jefferson, all to the effect that they have not been able to find any document or record relating to a vacating of the alley.

Stipulations entered into by the parties indicate the following actions have taken place which affect the alley in block 5. In 1870, the board of trustees of the village of Jefferson passed a motion for the purpose of opening all streets in the original plat. On page 154 of the minutes of the common council of the City of Jefferson in volume labeled April 16, 1878 to October 3, 1899, is recorded a resolution charging that no person shall be permitted to discharge any firearms, or shoot off a firecracker, etc., upon any of the streets or alleys bordering or running through certain enumerated blocks, including block 5. At page 200 of this same volume it is recorded that at a meeting of the common council held Friday, June 13, 1884, the council passed a resolution directing the street commissioner to grade the alley through block 3, the same as through block 5.

There is no dispute as to the north one half of the platted alley, it having been used by the public for vehicular purposes for more than twenty years prior to the commencement of the present action.

The south one half of the platted alley has always constituted a portion of the lawn of the Jefferson House, a hotel located on lot 4. The south boundary of the platted alley has been closed by a fence at least since 1866. A fence crossed the north boundary of the south half of the alley in 1866, and no one knows how long that fence remained. From at least 1890, until sometime after 1942, when removed by the city, a building (approximately 8 by 14) on a brick foundation was maintained on the north end of the south half of the platted alley. This building was used at various times by the hotel as an outhouse for hotel guests, a place to generate gas for use in the hotel prior to the advent of electricity, a chicken coop, a dog kennel, and a storage place for tools.

At the center line of the south one half of the platted alley the ground drops sharply to the west, the west line of the platted alley being seven feet lower than at the center line; this portion of the alley was never used for public traffic.

In 1866, a store owner on lots 1 and 2 brought an action against the owner of the Jefferson House alleging that the use of the alley was necessary and essential to his business and that all of the owners of lots in block 5 desire to use the alley except the defendants, who maintained a strong fence blocking access to the alley at the south line and the center of the block from east to west. The result of the case was not decisive on whether the allegations in the complaint were true.

The assessment and tax rolls of the City show that since 1911, no description of lots 3 and 4, block 5, for assessment and tax purposes has included the disputed area. (No assessment and tax rolls are available for the period before 1911).

The alley is shown as a public alley on the official street-numbering map of 1958; the zoning map effective in 1959, and the official street map effective in 1960. However, the Jefferson county plat book prepared in 1941, shows the alley platted in block 5 as only in the north half thereof and the south half of block 5 is shown as having no platted alley at all.

There exist three other evidences of the vacating of the alley in block 5. The first is an easement granted to Wisconsin Gas and Electric Company dated October 10, 1928, for construction of a gas main across lots 3 and 4 in block 5, 'together with the vacated alley joining the same on the west.' The second is a grant of sewer rights to Jefferson County Bank recorded August 9, 1921, which stated that the bank was the owner of a portion of lot 3, block 5, including the east one half of a vacated alley in the rear thereof. The last is a warranty deed to the City of Jefferson recorded May 24, 1927, of a portion of lot 7, block 5, 'subject to a certain drain easement granted to the Jefferson County Bank,' (describing the foregoing instrument granting sewer rights).

In 1936, the Racine street bridge was constructed in such a manner that the ramp leading to the bridge to the north of the platted alley left a clearance of only ten feet at that point, thus preventing easy access to the alley and to the utility property of the City, located on lots 7 and 8, via Racine street. The superintendent of the City Water and Light Department testified that he had been urging the City to open the alley for the past thirteen years (length of time he had been superintendent), and that in his opinion there has been a need for the alley to be opened ever since 1900, when a city well was drilled in that area. It was also his testimony that the opening of the alley would be desirable as it would allow for the construction of a storm sewer to take care of excess storm water drainage across utility property. That a 26,000 volt switching, metering and control station was constructed in August, 1960, and there is a 55 foot pole located on city owned lots 7 and 8, block 5, which terminates and dead-ends the 26,000 volt transmission lines which are the principal power lines supplying the City. Because heavy traffic cannot use the alley from the north, such traffic drives across the city lots or utility property and endangers the pole.

In 1959, and 1960, the district engineer of the State Board of Health recommended that vehicular traffic across the utility property be denied because of danger to water supply wells. The present action was commenced November 16, 1960.

Under the undisputed facts in the instant action we hold that at the time the commissioners recorded the original plat the dedication and acceptance were complete, and that the rule set forth in the case of Reilly v. City of Racine (1881), 51 Wis. 526, 529, 8 N.W. 417, 418, ³ is controlling. The applicable language of the Reilly case is as follows:

'But where the state, by authority of law, makes a city plat of its own land, and thereby dedicates the streets and other public grounds market thereon to the public use, the same high public authority that makes the dedication, by the same act accepts it on behalf of the public. The dedication and its acceptance are in the same public act. The proposition is self-evident.'

The defendant Eiffler relies on the Reilly case for two other rules: (p. 529, 8 N.W. p. 418).

'Until the time arrives when any street...