In re Hayes

• Decision Date: 20 April 1909
• Citation: 139 Wis. 163,120 N.W. 834
• Parties: IN RE HAYES.
• Court: Wisconsin Supreme Court

139 Wis. 163

120 N.W. 834

IN RE HAYES.

Supreme Court of Wisconsin.

April 20, 1909.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

In the matter of the petition of Hiram Hayes to vacate a part of the recorded plat of Hayes' Addition to West Superior. From an order dismissing the petition, petitioner appeals. Affirmed.

The plaintiff, Hiram Hayes, filed his petition in the circuit court for Douglas county, setting up, among other things, a description of the property in Hayes' addition to West Superior, and that, being the owner and proprietor of the land described in said addition, he caused the same to be surveyed and platted as Hayes' Addition to West Superior, and duly filed in the office of the register of deeds of the county of Douglas on the 30th day of August, 1890, such plat and caused the same to be recorded; that in platting the land described the petitioner dedicated streets, avenues, and alleys full three-eighths of the whole piece, giving thereto or providing therefor Lamborn avenue, or Grand avenue, North Third and North Fourth streets, each 70 feet wide, and making alleys 20 feet wide as shown upon the plat; that petitioner is the owner of several lots describing them on Lamborn avenue; that afterwards a portion of Lamborn avenue was widened by the common council of the city of Superior from 70 feet to 100 feet by taking 15 feet from the lots on each side of Lamborn avenue; that the street was widened against the protest of the petitioner. The petition further alleges: “That said Lamborn avenue is a street paved 60 feet in width, from curb to curb, between North Third street and Belknap street, with a space of twenty (20) feet wide allowed on either side of the avenue for sidewalks. That the purpose of this application to the court is to obtain its allowance of the application to alter the plat of said Hayes' addition so as to take eight (8) feet in width off from the east side of said avenue along and adjoining the west side of said lot one (1), block four (4), thus making such lot one (1) eighteen (18) feet in width, whereas it is now only ten (10) feet wide, for the purpose of widening the aforesaid space of thirty-eight (38) feet by the additional width of eight (8) feet, making the full breadth of forty-six (46) feet, and thus allowing the needed and indispensable width of sixteen feet for office space and thirty (30) feet for the width of the erecting floor described in such new addition, whose construction is compelled by the exigencies of the business, and is contemplated in the immediate future by the Superior Iron Works, as before stated. Your petitioner further represents to the court that the growth and enlargement of said plant must by necessity of the situation extend, and is intended to be extended to the southward of its present location alongside and fronting Lamborn avenue upon and over said lots twenty-three (23) to thirty-two (32), inclusive, in block four (4), in Hayes' addition, that all of said lots belong to the petitioner, and he prays that the map and plat thereof may be so altered by the action of the court as to take off eight (8) feet from the east side of said avenue appurtenant to said lots (being in substance only eight [8] feet off of the sidewalk space of twenty [20] feet), so that such eight feet may be added to the length of each of said lots, making them 133 feet long, the same being now only 125 feet in length. That the narrowing of Lamborn avenue by eight feet along the entire length of block four (4), in Hayes' addition, bordering on such avenue, still leaves twelve (12) feet for sidewalk space, allowing for the sidewalk itself and alone the full width of eight (8) feet, and four (4) feet over to spare, though a sidewalk eight feet in width is now considered unnecessarily wide, inasmuch as all new cement sidewalks in that vicinity are at present being built by the city six feet wide in place of the former eight-foot plank sidewalks.” It is further alleged that petitioner desires to procure an order from the court vacating a portion of Lamborn avenue described by metes and bounds in said petition, which portion narrows said Lamborn avenue eight feet at the point described. Written notice of the application to vacate was given, and the street committee of the city of Superior reported to the common council, recommending that no objection be made by the city to the granting of the prayer of the petitioner. On the hearing of the petition, the city of Superior did not appear, but certain owners of property abutting upon Lamborn avenue appeared by attorney and objected to the jurisdiction of the court in the premises, and opposed the granting of the prayer of the petition, and the court ordered the petition dismissed for want of jurisdiction, from which order this appeal was taken.

Catlin, Butler & Lyons and Hiram Hayes, for appellant.

Euclid L. Johnson, for respondents.

KERWIN, J. (after stating the facts as above).

It is plain from the allegations of the petition that the petitioner seeks to vacate part of a public street in the city of Superior under the provisions of sections 2265, 2266, St. 1898. These statutes provide for the vacation of plats, and not the vacation of streets, and the main question is whether they authorize the maintenance of the case made by the petition. Section 2265 provides, in effect, that the circuit courts may, upon application of the proprietor or proprietors of any recorded plat of land made under the provisions of any law of this state or upon application of the proprietor or proprietors of any part of any plat or of any lot therein, alter or vacate such plat or part thereof, and further provides that such application shall be made to the circuit court of the county in which the plat is situated and how the notice shall be given; and section 2266 provides that upon proof of notice the court shall hear the parties interested and determine the petition, and may in its discretion vacate such plat or any part thereof, and enter judgment accordingly, and that, when only a part of a plat shall be vacated, may also direct that the title to such portions of the streets of such plat as shall be vacated shall be vested in the owners of the lots or land abutting on the street or portions of streets so vacated from the line of the...