Klinkert v. City of Racine

• Decision Date: 09 May 1922
• Citation: 188 N.W. 72,177 Wis. 200
• Parties: KLINKERT v. CITY OF RACINE ET AL. JOHNSON ET AL. v. CITY OF RACINE ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 200

188 N.W. 72

KLINKERT

v.CITY OF RACINE ET AL.

JOHNSON ET AL.

v.CITY OF RACINE ET AL.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Actions by Ernest Klinkert and by Hans Johnson and another against the city of Racine, a municipal corporation, and others. Judgments for plaintiffs, and defendants appeal. Reversed, with directions to dismiss complaints.

These two actions were separately brought against Racine and its board of public works, to prevent by injunction the opening up of an alley between lots of the respective plaintiffs. The two actions were tried together before the circuit judge without a jury, and the two actions were argued together in this court.

It appears that in 1874 one Charles Herrick, being the owner, caused a survey and a map or plat thereof to be made of the east one-half of the southeast quarter of section 17, township 3 north, of range 23 east in the city of Racine, Racine county, Wis. The plat was offered for record and recorded in the office of the register of deeds of said county, and was known as Herrick's addition to the city of Racine. In July, 1875, Herrick offered another plat for record, altering the former plat in one particular but leaving the alley in issue, without change as shown on the original plat. This second plat was duly recorded in the office of the register of deeds.

The plaintiff Klinkert owned lot 3, and the plaintiffs Johnson owned lot 4 in block 2 of said addition. Lot 3 faces west on Ann street, and lot 4 faces east on Junction avenue. Between the two lots, according to the plat, was located the alley in question, 16 feet wide, beginning at the north line of said lots and extending southward through the block. Since the dedication of said plat, conveyances have been made of all the property therein by description as therein shown. The plaintiffs herein received title to their property by similar descriptions. The plaintiff Klinkert purchased his property in September, 1901, by a conveyance describing it as follows: Lot No. 3, in block No. 2, of Herrick's addition to the city of Racine, situated in the city and county of Racine, state of Wisconsin. The plaintiffs Johnson received title to lot 4 in November, 1903, by a conveyance describing the property as follows: Lot No. 4 in block No. 2, of Herrick's addition to the city of Racine, situated in the city and county of Racine, state of Wisconsin. Taxes have been levied and collected accordingly. The city has made improvements on some of the streets and alleys, and the same have been used for public travel.

On the rear of lot 3, from 1879 until 1906, when it burned, a barn was located, extending to the middle of the alley. On the rear of lot 4, extending to the middle of the alley, from 1882 to the present time, there has been a barn or shed, which the court found to be of the value of $250 at the time of purchase in 1903. It is of little value at the present time. On the south side of lot 3, extending from Ann street to said alley in block 2, is an alley as described in the second plat filed in 1875. A portion of the alley in block 2 north of said east and west alley forms a culde-sac and has not been used by the public to any considerable extent, and not at all until recently. The owners of the property north of the end of the alley have recently made use of the alley to obtain a rear entrance to their property, and desire the opening of the alley for that purpose. It is also claimed that the opening of the alley to the rear of the property to the north is necessary for the purposes of fire protection.

The trial court held that there had never been a dedication of the alley in question to the public; that the city of Racine was estopped from claiming title to said alley between the properties of the plaintiffs; that the city's claim to said property is barred by the statute of limitations; that the plaintiffs had obtained title to said alley by adverse possession; that there was no public necessity for opening up the alley; and that the respective plaintiffs were entitled to the portion of the alley shown on the plat, adjoining their respective lots and to the center of said alley. From the court's findings and conclusions of law the city of Racine appeals.Elmer E. Gittins, of Racine (Leonard P. Baumblatt, of Racine, of counsel), for appellants.

Thompson & Harvey, of Racine, for respondents.

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

[1] 1. In making the surveys and plats and causing the same to be recorded in the office of the register of deeds of Racine county, Herrick seems to have complied with all the requirements of chapter 47 of the Priv. & Loc. Laws of 1858, then in force. Taylor's Revised Statutes, vol. 1, c. 47, subsec. 4. Neither these statutes nor the charter of the city of Racine contains any requirement of acceptance of the plat. Under the common law no acceptance is required. It is sufficient, both under the common law and under the statutes cited, that the city make use of the streets and alleys dedicated, or improve the same, or accept the plat for the purpose of taxation. Smith v. Beloit, 122 Wis. 396, 100 N. W. 877.

Counsel for respondent cites Mahler v. Brumder, 92 Wis. 477, 66 N. W. 502, 31 L. R. A. 695, to the point that acceptance by the city of a plat was necessary. There the plat was offered to the city council for acceptance, and affirmatively...