Galewski v. Noe

Decision Date02 February 1954
Citation62 N.W.2d 703,266 Wis. 7
PartiesGALEWSKI, v. NOE et al.
CourtWisconsin Supreme Court

This is an action in equity to compel the removal of obstructions placed by the defendants Noe upon an alleged public highway in the Village of Fox Point; to declare the right of the plaintiff to use as a public highway the east 30 feet of the defendants' real estate; and to enjoin future obstructions of said highway by the said defendants.

In 1905 the Calumet Land Company owned a large tract of land in the town of Milwaukee. Since the incorporation of the Village of Fox Point in 1926 this tract has been within the boundaries of the village. This tract of land is bordered on the south by a highway known as Calumet Road. The company planned the sale of this real estate in smaller parcels, and contemplated the opening of a public street extending northerly through the tract from Calumet Road.

In 1905, the company conveyed a tract to one Charles Hensch, consisting of about one acre. In 1911, the company conveyed another tract containing approximately an acre to the same grantee, which land was located immediately north of the first parcel. In each of the deeds to Hensch the company reserved a right of way 30 feet wide across the east side of said premises for a public highway. In 1937, both of said parcels were conveyed by the administrator of the estate of Charles Hensch, deceased, to George H. Noe. In 1941, the defendants conveyed said parcel to a third person, who reconveyed to George and Eva Noe as joint tenants. Each of said deeds contained the reservation of the east 30 feet for a public highway.

In 1925 the company sold a parcel of land to plaintiff's parents. This parcel is now owned by the plaintiff. The south line of the plaintiff's parcel is 131.96 feet north of the north line of the defendants' land. In the Galewski deed there was a reservation of the east 25 feet thereof for a public highway.

The plaintiff's parents constructed a dwelling upon their parcel of land in 1925 and the plaintiff has resided thereon since the same was constructed. The defendants rented their property until 1941, when they moved thereon and have occupied the same since that time.

The land reserved for a public highway by the Calumet Land Company was not accepted by the town of Milwaukee, nor was it formally accepted by the Village of Fox Point until in April, 1952. Although not officially named, the land reserved by the company for highway purposes was called Holton street. After formal acceptance by the Vollage of Fox Point it was officially named North Bell Road.

The defendants placed obstructions upon the east 30 feet conveyed to them but reserved for a public highway, and the above action was commenced in 1951 against George Noe and Eva Noe, and the Noes served an answer and counterclaim in which they denied the existence of the alleged highway and asked that plaintiff be barred against having or claiming any right, title or interest in their premises. The Village of Fox Point was later joined as a party defendant, and it prayed for a judgment declaring the east 25 feet of the Noes' parcel to be a part of a public highway.

A memorandum decision, stating that findings might be drawn in accordance therewith was filed on July 13, 1953. An order was obtained directing the plaintiff and the Village of Fox Point to show cause why the decision should not be vacated and set aside, or in the alternative why they should not be restrained from entering findings of fact and conclusions of law and a judgment herein, for the reason that the decision was filed more than sixty days after the submission of the cause to the court. An order was entered on July 23, 1953, dismissing the motion on the order to show cause, and the defendants Noe appealed from that order.

Judgment was entered on the 24th day of July, 1953, adjudging that the unimproved street known as North Holton street, and now also known as North Bell Road, in the Village of Fox Point, is a public highway in so far as it is located upon the east 25 feet of the Noes' land, enjoining George Noe and Eva Noe from interfering with the rights of the plaintiff and the general public to the use of said 25 feet for a public highway, and dismissing the counterclaim of the Noes upon its merits. The defendants George Noe and Eva Noe appealed from this judgment.

Further facts will be stated in the opinion.

Joseph A. Barly, Milwaukee, for appellants.

Shea & Hoyt, Milwaukee, for plaintiff.

Maxwell H. Herriott, Milwaukee (Maxwell H. Herriott and Laurence E. Gooding, Jr., of counsel), for intervening defendant.

BROADFOOT, Justice.

The appellants first contend that the reservations in the various deeds by the Calumet Land Company did not constitute a complete dedication of the land so reserved for a public highway. They contend that in Wisconsin five elements are necessary for a complete dedication: '(1) An absolute dedication; (2) a setting apart; (3) surrender to the public use of the land by the proprietors; (4) an acceptance; (5) a formal opening by the proper authorities or a use equivalent to such acceptance or opening.' They cite Mahler v. Brumder, 92 Wis. 477, 66 N.W. 502, 503, 31 L.R.A. 695, as authority therefor. In that case the court used the following language:

'* * * The law is well settled that, to constitute a public street or highway by dedication, there must not only be an absolute dedication,--a setting apart and a surrender to the public use of the land by the proprietors,--but there must be an acceptance and a formal opening thereof by the proper authorities, or a user which is equivalent to such acceptance and opening.'

We do not so interpret what was there said. In the Mahler Case, the court was dealing with a plat which was submitted to the common council for acceptance, but which the council refused to accept. Even so, the language quoted therefrom can only mean that in order to have an absolute and complete dedication there must be a setting apart and surrender, which means an offer of the land for public use, and an acceptance thereof. Wisconsin follows the general rule as illustrated by the following quotation from Knox v. Roehl, 153 Wis. 239, 243, 140 N.W. 1121, 1122:

'The essential requisites of a valid common-law dedication are that there must be an intent to dedicate on the part of the owner and an acceptance of the dedication by the proper public authorities, or by general public user.'

Dedications or offers therof need not be in writing, nor in any particular form. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication. The trial court found that the Calumet Land Company intended to dedicate for street purposes a strip of land 50 feet wide from Calumet Road north to the north line of its property, said strip being 55 feet wide south of the north line of the property of the defendants Noe.

In 1926 the land company prepared a map of its property subdivided into more than 50 parcels or lots. The appellants objected to the use of this map because it was not an official statutory plat. It does not contain a surveyor's certificate nor a dedication by the owners, nor was it ever recorded. It was not offered nor received as such. It was known to the village authorities and for convenience they used the parcel or lot numbers designated upon said map. This map showed Holton street as referred to in the above finding by the trial court. The trial court also had before it the substance of the deeds to the parcels bordering on Holton street, in each of which there was a reservation of 25 feet for street purposes. The trial court used the parcel numbers from the map as a matter of convenience in its memorandum decision and in its findings of fact and conclusions of law. The village also used these parcel numbers in its tax roll. It was established that from the year 1925 there was a fence...

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