City of Superior v. Nw. Fuel Co.
| Decision Date | 16 January 1917 |
| Parties | CITY OF SUPERIOR v. NORTHWESTERN FUEL CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Douglas County; G. N. Risjord, Judge.
Action by the Northwestern Fuel Company against the City of Superior and the Northwestern Fuel Company, in which the defendant city claimed a portion of the lands in the possession of the defendant Fuel Company and claimed by it. From a judgment for the city for such lands, the defendant Fuel Company appeals. Reversed, with directions to enter judgment for the Fuel Company.
Action to establish boundaries and to quiet title to certain lands abutting on the St. Louis river and that part thereof commonly known as the Bay of Superior. The facts material on this appeal are as follows: On June 13, 1882, Hiram Robbins owned certain lands in the northeast quarter of the southeast quarter of section 14, and Vincent Roy and Lisette Roy owned certain lands in lot 2 of section 13, all in township 49 north of range 14 west. On that day the owners of these several tracts united in the making and execution of a plat, known as Exhibit A, the essential part of which is shown in the annexed diagram:
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The center of Superior street where the same is of the width of 100 feet is on the section line between sections 13 and 14. The name of Superior street was afterwards changed to Hill avenue, by which name it will be hereinafter designated. That part of Hill avenue which is adjacent to the east side of the northeast quarter of the southeast quarter is 100 feet in width; that part thereof lying northerly is 50 feet in width, the section line forming the center of Hill avenue where it is 100 feet wide and the westerly boundary thereof where it is 50 feet wide. Attached to the map was the certificate of the surveyor substantially in the form required by the law as it then was. The plat was also certified and acknowledged by the owners of the property embraced within the plat and was on said day duly filed for record in the office of the register of deeds of Douglas county. That part of Hill avenue lying northerly of Bay street has never been worked or traveled, and until the erection of the coal dock hereinafter referred to there was no settlement or travel that required it to be worked. On the 12th day of January, 1881, the makers of the plat had united in the conveyance of a right of way to the Northern Pacific Railway Company 100 feet in width, covered by the waters of the St. Louis river or the Bay of Superior, the location of which right of way is indicated on Exhibit 2 and marked “Northern Pacific Right of Way.”
Shortly after the conveyance the railroad was completed thereon, and ever since that time it has been operated over the center of the strip of land so conveyed. The rails were first laid on trestles, and thereafter the right of way was filled in, so that at the time of the commencement of this action there was but little water between the railroad track and the shore.
On the 11th day of December, 1885, Lisette Roy, being the owner of the land lying between Water street and the Bay of Superior, sold the same to Stanley Dwight, and on December 31, 1885, Stanley Dwight conveyed the same to the Land & River Improvement Company. On November 12, 1900, the Land & River Company, being the successor of the Land & River Improvement Company, having acquired title to all of the lands lying north of Roy's addition in section 14, caused a plat of said lands and the lands which it had acquired from Lisette Roy to be made and filed. This plat is known as Sweetzer's division, Exhibit 2, the essential part of which is shown in the accompanying diagram. This plat was duly accepted by resolution of the board of public works of the city of Superior and certified by its city clerk. Point A' on Exhibit 2 corresponds to point A on Exhibit A, and point B on Exhibit 2 corresponds to point B on Exhibit A. After the plat had been made and filed and accepted by the city of Superior in February, 1901, the Northwestern Fuel Company (hereinafter called the Fuel Company) purchased from the Land & River Company blocks 503 and 504 and other lands according to the Sweetzer division plat. The court found that there was no evidence in the case as to whether or not the officers of the defendant Fuel Company had actual knowledge of the existence of Roy's plat or of any claim on the part of the city of Superior or the public to Superior street or Hill avenue or any riparian rights of the city or public to lands extending beyond said Hill avenue from the shore. Immediately after the purchase of the property the Fuel Company commenced to make very extensive improvements by erecting coal docks at an expense of several hundred thousand dollars.
On March 14, 1902, the city of Superior entered into a contract with the Fuel Company for the temporary erection and maintenance of a sewer over and across lot 6 of block 504, in which it was recited and stated that the defendant Fuel Company was the owner of all the lands conveyed to it by the Land & River Company; the city, however, having the right to occupy a designated part of the same for sewer purposes. After the Fuel Company had purchased the land in question the city of Superior assessed it and levied taxes thereon, which the defendant Fuel Company paid. In October, 1905, the present action was begun by the Northwestern Coal & Dock Company, and the city of Superior and the defendant Fuel Company were made parties defendant. The defendant city answered February 6, 1906, and then asserted for the first time the claim that Hill avenue, having been platted and laid out and opened to the shore or water line of the St. Louis river or Bay of Superior, the same had been dedicated to public use; that such dedication had been accepted by the city of Superior, and that all the rights and privileges appurtenant thereto were then vested in and belonged to the city of Superior and that the city of Superior had the exclusive right and privilege, by reason of the dedication thereof to a public use, to hold, maintain, occupy, and improve the submerged land or water overflowing the same in front of Hill avenue and the full width thereof from its terminus on the shore or bank of the St. Louis river or Bay of Superior to the established dock line in front of the same. The premises affected by the claim of the city of Superior correspond in a general way to lot 1 of block 504 as it appears on Exhibit 2. The Fuel Company answered denying the right of the city of Superior to the property in question for the uses stated, and alleged that Hill avenue was never legally laid out or dedicated, and that the city of Superior was estopped by reason of the platting of said Sweetzer division, the acceptance and recording thereof, the purchase by the defendant of the property mentioned, and by the improvement thereof, from setting up any claim to any part of Hill avenue beyond the southwest end of lot 1 of block 504.
The issue thus made up was tried before the court. Findings were made embodying the facts as stated and other facts which will be referred to in the opinion; and the judgment of the court established a right of way in the public in Hill avenue or Superior street to the bay or river shore, and from that point to the thread of the stream of the St. Louis River, the same to be bounded by dropping lines at right angles to the thread of the stream so that they will strike the boundary lines of Superior street as they reach the shore line as shown on Roy's plat, which lines were 50 feet apart measured at right angles to the street; the westerly street line being also the section line between sections 13 and 14. The boundaries of the street as established over the submerged portions of the land would correspond in a general way with lot 1 or block 504 as shown on Exhibit 2.
From a judgment entered in accordance with the findings and a stipulation of the parties, the Fuel Company appeals.
Luse, Powell & Luse, of Superior (A. E. Boyesen, of St. Paul, Minn., of counsel), for appellant.
H. V. Gard ...
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