Mahler v. Brumder

• Decision Date: 10 March 1896
• Citation: 92 Wis. 477,66 N.W. 502
• Parties: MAHLER ET AL. v. BRUMDER.
• Court: Wisconsin Supreme Court

92 Wis. 477

66 N.W. 502

MAHLER ET AL.

v.BRUMDER.

Supreme Court of Wisconsin.

March 10, 1896.

Appeal from circuit court, Milwaukee county; Frank M. Fish, Judge.

Action by Jacob and Hattie Mahler against George Brumder to enjoin the obstruction of an alleged street. Judgment for plaintiffs, and defendant appeals. Reversed.

Winslow and Marshall, JJ., dissenting.

Howard & Mallory, for appellant.

Miller, Noyes, Miller & Wahl, for respondents.

CASSODAY, C. J.

Grand avenue runs east and west in Milwaukee. The next street north of it is Wells street, which is parallel with Grand avenue, and 486 feet from it. Washington avenue (now Twenty-Seventh street) runs north and south, and crosses those two streets at right angles. In 1883, Van Valkenburgh became the owner of all the land between Wells street and Grand avenue, from Washington avenue east for a distance of a little more than 385 feet. The land was then open and unplatted. Thereupon Van Valkenburgh platted the same with lots fronting on Grand avenue, Washington avenue, and Wells street. There was also designated upon the plat a street or roadway 46 feet wide, and running east from east line of Washington avenue 300 feet, and named thereon “Washington Place.” The north line of “Washington Place,” so called, was and is 210 feet south of the south line of Wells street, and the south line of Washington Place was and is 230 feet north of the north line of Grand avenue, and several lots fronted on Washington Place from either side of it; but that plat did not mention nor refer to Twenty-Sixth street, which was not then in existence, and was not established nor laid out until several years afterwards. Van Valkenburgh thereupon submitted such plat to the common council of the city for acceptance, but they declined to accept of the same, and notified him to that effect. Nevertheless, he graded and graveled the street, and put in gutters and wooden curbing and plank sidewalks, and sold lots fronting thereon. April 12, 1894, the plaintiff, Mrs. Mahler, acquired title to one of the lots fronting thereon through several mesne conveyances, the first being a deed from Van Valkenburgh to Murray, June 21, 1884, each and all of which deeds described the land as commencing at a point on the north line of Washington Place, 130 feet east of the east line of Washington avenue; thence east, along said north line of Washington Place, 40 feet, to a point; thence north 105 feet, to a point; thence west 40 feet, to a point; thence south 105 feet, to place of beginning. November 18, 1889, the city resolved to open Twenty-Sixth street, and for that purpose Van Valkenburgh conveyed that portion thereof east of the defendant's premises, hereinafter described, to the city July 12, 1892. Some time prior to the acts complained of, the defendant acquired title derived from Van Valkenburgh, in 1884 and 1886, through several mesne conveyances, to two lots, each fronting on the east 100 feet of Washington Place, and each running back therefrom 105 feet, and also acquired title, derived from Van Valkenburgh, May 23, 1887, through several mesne conveyances, to the east one-third of Washington Place, being that portion of Washington Place between the two lots he acquired as above mentioned, and also a strip 3 feet wide and 256 feet long between said lots and Washington Place on the west, and Twenty-Sixth street on the east. The plaintiffs concede that, before they obtained their lot in question there was a wire fence entirely across Washington Place, 200 feet east of Washington avenue, and parallel with that avenue, being 30 feet east of the east line of the plaintiffs' lot; that, after they acquired such title as indicated, they tore down that wire fence; that some time afterwards the defendant caused a second fence to be built on the same line where the wire fence had stood, and which last fence was constructed of heavy plank cedar posts and clapboards, which last fence the plaintiffs cut down and removed; that two weeks afterwards the defendant rebuilt the same upon the same line, and of similar materials; that thereupon, and on November 5, 1894, the plaintiffs commenced this action in equity to abate and remove said fence as a nuisance, and to enjoin and restrain the defendant from constructing and maintaining such fence. The defendant answered by way of admissions, denials, and counter allegations to some of the facts as stated and others to be stated. At the close of the trial, the court found, in effect, some of the facts stated, and also, in effect, that Washington Place, and the whole thereof, was a public road or highway, and that such fence was a nuisance therein, and ordered judgment abating the same, and perpetually enjoining the defendant from constructing or maintaining such fence. From the judgment entered thereon accordingly, the defendant brings this appeal.

1. The finding of the trial court to the effect that that portion of Washington Place east of the fence mentioned had been a public road or highway ever since 1883 is contrary to the undisputed evidence. As indicated, the city, in 1883, expressly refused to accept the plat with Washington Place designated thereon as a street. There is no claim or pretense that Washington Place, so designated on that plat, extended east to any street or roadway, public or private. On the contrary, it is undisputed that its east end, as designated on that plat, terminated on lands then owned wholly by Van Valkenburgh, and that his land extended still further east for a distance of more than 85 feet. So it is undisputed that, for nearly seven years prior to the time when the plaintiffs obtained their lot, Van Valkenburgh and his grantees of the land abutting upon that portion of Washington Place east of the line where the fence is so located, by conveyances and otherwise, treated that portion of Washington Place as private property, to which neither the public nor any other parties or persons had any right, title, or interest; and the city not only refused to accept the same as a public road or street, as mentioned, but compelled the owners thereof to pay assessments thereon as private property, for opening, grading, and improving Twenty-Sixth street; and there is no evidence that that portion of Washington Place east of the line of that fence was used by the public during any portion of such seven years as a road or street, public or private. 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. Holdane v. Trustees, 21 N. Y. 474; Fonda v. Borst, *41 N. Y. 48; Bridge Co. v. Bachman, 66 N. Y. 261;People v. Underhill, 144 N. Y. 324, 39 N. E. 333;Connehan v. Ford, 9 Wis. 240;Hanson v. Taylor, 23 Wis. 547;Eastland v. Fogo, 66 Wis. 133, 27 N. W. 159, 28 N. W. 143. Obviously, there was no such acceptance or user; and hence it was competent for the proprietors and abutting owners to revoke the same, and they did revoke the same. Holdane v. Trustees, 21 N. Y. 474. We must hold that the portion of Washington Place upon which such fence was located never became a public road or street, nor did any portion thereof east of the line where that fence was located become such public road or street.

2. As to the portion of Washington Place west of the line of that fence, it may be otherwise. It appears that in 1891 and 1892 Van Valkenburgh obtained certain adjudications to the effect that certain tax certificates on that portion of Washington Place west of the fence were void, for the reason that the same was a public road or street, and hence exempt from taxation. Since that portion of Washington Place opened directly upon the public avenue at its west end, it may be that, under the authorities, it was not precluded from being a public street or road by the mere fact that it was and is a cul de sac. Moll v. Benckler, 30 Wis. 584;Schatz v. Pfeil, 56 Wis. 429, 14 N. W. 628;Moore v. Roberts, 64 Wis. 538, 25 N. W. 564;People v. Kingman, 24 N. Y. 559; Elliott, Roads & S. p. 1, and cases there cited. Assuming that that portion of Washington Place west of the fence is a public road or street, yet that would not make the fence a public nuisance; and, even if it were, still that would not give the plaintiffs, as private citizens, a right of action to abate the same, for it is well settled that, to entitle a private party to maintain an action to abate a public nuisance, it must appear that he has suffered some special or peculiar damages, differing, not merely in degree, but in kind, from that which is deemed common to all. Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379;Hay v. Weber, 79 Wis. 591, 48 N. W. 859;Evans v. Railway Co., 86 Wis. 603, 57 N. W. 354. Such being the law, it is obvious that the right of the plaintiffs to maintain this private action is no greater nor less by reason of Washington Place in front of their lot being regarded as a public road or street, or merely as a private...