City of Racine v. Crotsenberg

• Decision Date: 25 November 1884
• Citation: 21 N.W. 520,61 Wis. 481
• Parties: CITY OF RACINE v. CROTSENBERG AND ANOTHER.
• Court: Wisconsin Supreme Court

61 Wis. 481

21 N.W. 520

CITY OF RACINE

v.CROTSENBERG AND ANOTHER.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Racine county.

This is an appeal from an order of the circuit court sustaining a general demurrer to the complaint. The action is ejectment. The complaint alleges that in 1855 one West, being the owner of certain lands in the plaintiff city, platted the same, pursuant to the statute, into lots, blocks, streets, and alleys; that the premises claimed in this action are located within said plat, and are marked and designated thereon as an alley; that from the date of recording said plat until 1868 the alley was open to public use, and used as a public highway; that, by reason of the aforesaid acts, the plaintiff became and is entitled to the possession of such premises, to be held by it in trust for the uses and purposes of a public highway; that about the year 1868 the defendant Crotsenberg wrongfully and unlawfully took possession of such alley, and has ever since retained, and does now retain, exclusive possession thereof, and unlawfully withholds the same from the plaintiff; and that defendant Cunningham is the actual occupant of the premises, as tenant of Crotsenberg, and now holds the same for him.Edwin White Moore and Samuel Ritchie, for appellant.

Hand & Flett, for respondents.

LYON, J.

In Kimball v. Kenosha, 4 Wis. 321, it was settled that in this state a grantee of a lot bounded by a street in a village or city, laid out, platted, and recorded in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement. The fee of the street is in the abutting owner, and the interest of the public therein, which the city or village holds in trust for it, is not a fee, but a mere easement. Goodall v. Milwaukee, 5 Wis. 32;Milwaukee v. Milwaukee & B. R. Co. 7 Wis. 85;Ford v. Chicago & N. W. Ry. Co.14 Wis. 609. In Gardiner v. Tisdale, 2 Wis. 152, and again in Weisbrod v. Chicago & N. W. Ry. Co. 21 Wis. 602, it was held that the owner of the fee of a street might maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repugnant to the purpose of the public easement. The above rules have never been shaken, and are firmly imbedded in the jurisprudence of this state. These rules are decisive of this action, for no one will contend that an action of ejectment will lie to recover a mere right of way. Such an easement is incorporeal in its nature, (Washb. Easem. 3,) and ejectment lies only to recover things corporeal, which may be the subjects of seizin, entry, and possession. There can be no seizin of an...