Jarstad v. Morgan

• Decision Date: 07 January 1880
• Citation: 48 Wis. 245,4 N.W. 27
• Parties: KNUD O. JARSTAD, RESPONDENT, v. JOHN MORGAN, APPELLANT.
• Court: Wisconsin Supreme Court

48 Wis. 245

4 N.W. 27

KNUD O. JARSTAD, RESPONDENT,

v.JOHN MORGAN, APPELLANT.

Supreme Court of Wisconsin.

Filed January 7, 1880.

Appeal from Manitowoc circuit court.

H. G. & W. J. Turner, for respondent.

Nash & Schmitz, for appellant.

COLE, J.

The land which the plaintiff seeks to recover in this case is a strip laid out and designated on the plat of the village of Clark's Mills as “River street.” The defendant owns lots in block 1, abutting on the north on this street. Both parties claim under conveyances from Stephen S. Clark, one of the original proprietors, who made the plat. On the part of the plaintiff it is said that the plat was not properly certified and acknowledged so as to entitle it to record, and, therefore, did not operate as a grant of the land to the public for a street, and that he took the same under his conveyance. Both the deeds under which the parties claim the premises refer to the village plat. The defendant's deed conveys lots 1, 2, 3 and 4 in block 1, “according to the Clark's Mills village plat on record.” In the plaintiff's conveyance the second course and distance describing the land is to commence “at the north-west corner of a piece of land heretofore deeded to Mary Carr; thence easterly on the north line of said Carr land to the north-west corner of lot 11, block 1, in the village of Clark's Mills, on the south side of the Manitowoc river, about 22 rods; thence northerly on the west line of said block 1 to the north-west corner thereof, being 20 rods; thence easterly on the north line of said block 1 about twenty rods, to the center of Main street; thence northerly,” etc.

The record states that the plaintiff, for the purpose of proving the locality of the premises described in the complaint, offered in evidence the record of the plat of the village of Clark's Mills. Undoubtedly, under the decisions of this court, this plat could be resorted to for the purpose of indentifying the land conveyed; (Vilas v. Reynolds, 6 Wis. 214;Simmons v. Johnson, 14 Wis. 524;Fleischfresser v. Schmidt, 41 Wis. 223;) but in this case the plaintiff, in order to explain his deed and establish his title to the strip in question, introduced the record of the plat. Under these circumstances, the plaintiff himself having relied upon the record to establish his title, his proof being fatally defective without the record, the question arises whether he is in a position afterwards to say (when the defendant relies on the same record to show that there was, upon the north side and adjoining his lots, a street or highway) that the record is incompetent to prove that fact. It seems to us that the plaintiff is estopped from taking the objection. Unless this is so the plaintiff in effect says to his adversary: This record produced by me is sufficient for my purpose; it is good to establish my title to the premises, but it can prove nothing in your favor because the original plat was not so certified and acknowledged as to entitle it to record. Of course the plaintiff might have produced the plat itself to make good his title, and not have resorted to the record. But this he did not see fit to do, but put the record itself in evidence to make good his case. He must now stand by that record for whatever it tends to prove. That this record tends to show that the original proprietors intended there should be a street adjoining the defendant's lots on the north, which is called on the plat “River street,” is a fact that is indisputable.

Further, it appears by the village plat that a certain quantity of land was surveyed and divided into blocks by the proprietors, and that block 1 was subdivided into lots. There were likewise streets laid out and named, which were fully described on the plat.

It does not appear that Mary street on the west, and River street on the north of defendants' lots were ever opened and used by the public as highways. But it is...