Johnston v. Lonstorf

• Decision Date: 17 April 1906
• Citation: 128 Wis. 17,107 N.W. 459
• Parties: JOHNSTON ET AL. v. LONSTORF ET AL.
• Court: Wisconsin Supreme Court

128 Wis. 17

107 N.W. 459

JOHNSTON ET AL.

v.LONSTORF ET AL.

Supreme Court of Wisconsin.

April 17, 1906.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Robert A. Johnston and another against Margaretha Lonstorf and others. From an order dissolving a temporary injunction restraining defendants from vacating a public alley, plaintiffs appeal. Reversed.

This is an appeal from an order dissolving a temporary injunction restraining the defendants from vacating and closing up the portion of the public alley west of Twenty-Third street upon which the lots of the respective plaintiffs abut. The portion of the alley in question is in a block bounded on the north by Grand avenue, on the east by Twenty-Third street, on the south by Sycamore street, and on the west by Twenty-Fourth street, and is 25 feet wide and is located about half way between Grand avenue and Sycamore street and extends from Twenty-Third street west about 8 rods to the east line of the lot of the plaintiff Johnston mentioned, which lot abuts against the west end of the alley and extends from Grand avenue south 210 feet, and is 80 feet wide and fronts on Grand avenue. The lot of the plaintiff Cowdery mentioned joins the Johnston lot described on the east and fronts on Grand avenue, and is 60 feet wide and extends from Grand avenue south 175 feet to the alley upon which it abuts. The defendant, Mrs. Lonstorf, owns the lot fronting on Grand avenue and between the Cowdery lot described and Twenty-Third street and is about 72 feet wide and extends from Grand avenue south 175 feet to the alley upon which it abuts. The defendants, Mrs. Lamp and F. H. Miller, as trustees under the will of Peter Lamp, who died prior to 1893, own the several lots bounded by the alley on the north, abutting thereon and extending from Twenty-Third street west about 132 feet. It appears and is undisputed that upon the plat of the lots mentioned, which was duly recorded in 1883, there is dedicated to public use an alley 25 feet in width, the west 8 rods of which has been described, and which “said alley continued and continues through the remainder of said Grand Avenue Heights addition lying on the east side of Twenty-Third street”; that the plaintiffs and each of them purchased their respective parcels of land relying upon the existence of said alley giving them an exit from the rear of their respective lots; that in 1896 the plaintiff Johnston built a dwelling house on his lot, fronting on Grand avenue, and at great expense built a barn upon the southern portion of his lot, opening and abutting on said alley, having an exit on said alley for the purpose of ingress and egress to and from said barn; that George Lonstorf, a son of Mrs. Lonstorf, residing in the ward in which said premises were situated, was elected an alderman of the ward in the spring of 1904, and that he had taken part in the proceedings resulting in the vacation of the alley; that December 27, 1904, the said George, as such alderman, presented to the common council a petition, praying for the vacation of the portion of the alley west of Twenty-Third street; that said petition was signed by Mrs. Lonstorf, but was not signed by any other owner or occupant of land abutting upon said alley, but was signed by some 30 freeholders residing and owning real estate in said ward at points remote from the alley; that in January, 1905, a resolution was passed by the common council and approved by the mayor, directing the city engineer to make and file an accurate survey and plat of the portion of the alley proposed to be vacated; that in February, 1905, the engineer filed such survey and plat as so directed, and the same was thereupon approved by the common council and the mayor, and notice of such proposed vacation was thereupon given as required; that pursuant to such notice a jury was selected and in July, 1905, made their report that said alley was no longer of any public utility, and August 21, 1905, a resolution and order was duly passed by the common council and approved by the mayor that said portion of said alley was no longer of any public utility, and the report of said jury and the whole thereof was thereby confirmed; that August 31, 1905, a certified copy of the final order of the common council vacating such portion of the alley, containing a full and accurate description and map and plat of the same, was filed with the register of deeds as required by section 3187a, Rev. St. 1898. Thereupon this action was commenced and a temporary injunction restraining the defendants from closing up or fencing in the portion of the alley lying west of Twenty-Third street. Upon the complaint and verified answer of Mrs. Lonstorf and the trustees under the Lamp will the trial court obtained an order to show cause September 25, 1905, why such injunctional order should not be dissolved, and November 1, 1905, the trial court vacated and set aside said injunctional order. From that order the plaintiffs bring this appeal.Quarles, Spence & Quarles and Miller, Noyes & Miller (J. V. Quarles, Jr., of counsel), for appellants.

Fiebing & Killilea, for respondents.

CASSODAY, C. J. (after stating the facts).

It is conceded that the recording of the plat of Grand Avenue Heights addition in 1883 dedicated to the public use the streets and alleys marked thereon as such. Pettibone v. Hamilton, 40 Wis. 402;Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 6, 98 N. W. 969, 105 Am. St. Rep. 1007. The plaintiffs respectively purchased the lots mentioned by the description of the same as given on said plat. It has long been settled in this state that the owner of a lot bounded by a public street within a recorded village or city plat takes title to the center of the street, subject to the public easement. Kimball v. City of Kenosha, 4 Wis. 321;City of Milwaukee v. Mil. & B. R. R. Co., 7 Wis. 85;Hegar v. C. & N. W. Ry. Co., 26 Wis. 624;Norcross v. Griffiths, 65 Wis. 607, 27 N. W. 606, 56 Am. Rep. 642; C. & N. W. Ry. Co. v. M. R. & K. E. Ry. Co., 95 Wis. 568, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. Rep. 136;Smith v. Beloit, 122 Wis. 396, 410, 100 N. W. 877;Lins v. Seefeld (Wis.) 105 N. W. 917, 919. The same is true as to the owner of a lot bounded by a public alley. Elliott on Roads and Streets (2d Ed.) §§ 23, 24, 25. It is there said, among other things, that: “If the alley is a public one it is a highway, and, in general, is governed by the rules applicable to streets. * * * Whatever may be the dimensions of a way, if it be open to the free use of the public, it is a highway, nor is its character determined by the number of persons who actually use it for passage. The right of the public to use the way, and not the size of the way, or the number of persons who choose to exercise that right, determines its character. An alley of small dimensions actually used by only a limited number of persons, but which the public have a general right to use therefore may be regarded as a public way. * * * Where an alley is ordered to be opened by the proper municipal authority it is deemed to be one of the public ways of the municipality. The right of eminent domain may be exercised in opening alleys in substantially the same manner as in opening streets. * * * The rights and duties of a municipal corporation respecting alleys are substantially the same as those respecting streets.” The lot of the plaintiff (Cowdery) described is bounded on the south by the portion of the alley in question, and 25 feet of the lot of the plaintiff (Johnston) described is bounded on the east by the west end of the portion of the alley in question. The mere fact that that portion of the alley was and is a cul-de-sac did not preclude it from being a public alley. Schatz v. Pfeil, 56 Wis. 429, 435-436, 14 N. W. 628;Mahler v. Brumder, 92 Wis. 477, 483, 66 N. W. 502, 31 L. R. A. 695. The right of abutting owners to have a public street or alley remain open is not merely that they may use the same, but that all persons may use it as a public street or alley, free from all claim or interference of the original proprietor, or those claiming under him, inconsistent with such use. Lins v. Seefeld (Wis.) 105 N. W. 917, 919;Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 6, 98 N. W. 969, 105 Am. St. Rep. 1007;Smith v. Beloit, 122 Wis. 396, 409, 411, 100 N. W. 877, and cases there cited. The important question presented is whether by virtue of the proceedings had, the common council and mayor had authority to vacate and close up the portion of the alley in question against the protest of the plaintiffs, as such abutting owners, and without compensation. It seems to be pretty firmly settled that where a public street or alley has been legally established, it can only be vacated, if at all, in the manner prescribed by statute. Elliott on Roads and Streets (2d Ed.) § 25; 1 Lewis, E. D. (2d Ed.) § 134a; Town of C. v. C. B. S. Q. Co., 50 Conn. 470; Miller v. Town of C., 42 Minn. 391, 44 N. W. 127; Railroad Co. v. City of Belleville, 122 Ill. 376, 12 N. E. 680;Moffitt v. Brainard, 92 Iowa, 122, 60 N. W. 226, 26 L. R. A. 821;City of Louisville v. Bannon, 99 Ky. 74, 35 S. W. 120. The statutes authorize “the common...