Paine Lumber Co. v. City of Oshkosh

Decision Date05 February 1895
PartiesPAINE LUMBER CO., LIMITED, v. CITY OF OSHKOSH.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by the Paine Lumber Company, Limited, against the city of Oshkosh. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to obtain a perpetual injunction against the defendant, its officers, agents, etc., restraining them from opening or attempting to open Henry street between High street and Pearl street in said city, and from removing or attempting to remove the fences and buildings within the said limits of Henry street. The plaintiff claimed to be the owner of blocks 119 and 122 of the replat of Winnebago in the Fifth ward of the city of Oshkosh, bounded on the north by West Algoma street, on the east by High street, on the south by James street, and on the west by Pearl street; that all of the premises between Pearl street, south of West Algoma street, and north of a line running from the center of James street where it intersects Pearl street, to the Fox river, and between said boundaries to the Fox river, or the center thereof, were owned by the plaintiff in fee, and it was in possession thereof, and that they were used, in connection with said blocks 119 and 122, as a part of the lumber yard of the plaintiff in the Fifth ward of said city; and that the plaintiff and its grantors had been in the quiet and peaceable possession of said premises for more than 30 years. It alleges the making and recording in the office of the register of deeds of said county in the year 1859 of a replat of Winnebago, and that there was laid out thereon a street called Henry Street,” running through the center of plaintiff's premises from High street to the Fox river, and it was claimed that this street had never been opened or worked, nor had any attempt been made to open it until the summer of 1873, but it had remained wholly obstructed since 1853, and had never been used as a public street; that the common council, in 1873, refused to open it, since which time the plaintiff had erected divers buildings on its said property in said alleged street, and had been to great expense in filling up the low marsh ground over which it was laid out; and that there was no public necessity for opening or using it. It was insisted that the street had been abandoned, and the defendant and its officers were estopped from opening it, and that the right to open and use it had been barred by certain statutes, namely, chapter 253 of the Laws of 1882, and section 1294, Sanb. & B. St., as amended by chapter 102, Laws of 1885; and it was alleged that the common council, August 8, 1890, passed a resolution directing proceedings to be taken for opening said street, and that the officers of the city threatened to open it, and remove the fences and buildings of the plaintiff on its said premises, causing plaintiff irreparable injury, etc. The answer admitted the replatting of Winnebago as alleged in the complaint, and that said block 119 thereof was, in 1870, replatted, and such replat was adopted by the common council, and duly recorded, and was called “Paine's Subdivision of Block 119” in the replat of Winnebago; that by said replat said Henry street was laid out along the north line of said block, and that it was made by one C. N. Paine as owner, one of the grantors of the plaintiff. It was admitted that the petition was presented for the opening of said street in 1873; that no action was taken to open the street until 1890, and denied the alleged abandonment of the street, and alleged that proceedings had been taken to open it for travel, but that the defendant's officers and ward employés had been forcibly resisted by the agents and servants of the plaintiff. The court found as facts that the plaintiff was the owner and in possession of blocks 119 and 122, and it and its grantors had been in possession thereof, including the premises in question, Henry street, for more than 30 years; that for more than 20 years before the commencement of the action the plaintiff had used said blocks, together with the premises in dispute, to wit, Henry street, running through the same from High street to Pearl street, as and for part and parcel of its lumber yard, and that the replat set out in the complaint, in 1859, was made and recorded, and Henry street, running through plaintiff's premises, was one-half in said block 119 and one-half in block 122, and was equally distant between West Algoma street on the north and James street on the south, and runs from High street to the river, some distance west of Pearl street; that at the time said replat was made, the Fifth ward, in which the premises are situate, was sparsely settled, and there were but few manufacturing establishments along the Fox river; that the premises in dispute, together with the premises adjoining said Henry street between High street and Pearl street, were low, marshy, and wholly impassable as a street when it was so platted and dedicated on the plat, and, unless filled, were wholly unfit for public travel; that in the year 1856 plaintiff's grantors built and operated a sawmill a little north of West Algoma street, and said mill and premises were subsequently conveyed to the plaintiff, and said mill and yard had for more than 20 years last past been used in connection with said blocks 119 and 122 in said Fifth ward of Oshkosh; that, in 1870, C. N. Paine, one of the grantors of the plaintiff, as the owner of the premises, replatted said block 119 by straightening the lines, so that they became perpendicular to High and Pearl streets. It was further found that Henry street had never been opened or worked, and no attempt had ever been made on the part of the defendant to open or work it; that in the year 1874 a petition was presented to the common council, praying that it might be opened from High street to the Fox river, and divers proceedings were had thereon between July 31, 1873, and the 5th of November, 1874, when the common council refused to grant said petition, and refused to open said street, of all of which the said plaintiff and its grantors then and subsequent thereto had notice; that since the year 1874 all of said blocks 119 and 122 had been used by the plaintiff and its grantors, including Henry street, for the purposes of a lumber yard, and piling lumber thereon, and since the 5th of November, 1874, plaintiff, for the purpose of carrying on its business, had built divers buildings in and upon said street, between High street and Pearl street; that the plaintiff and its grantors had been to very considerable expense in filling the premises known as Henry Street,” between High street and Pearl street, all of which had been done openly and to the knowledge of the officers of the city; that by reason of West Algoma street, on the north side of block 122, and James street, on the south side of block 119, and of High and Pearl streets, being public and traveled streets, there was no need or necessity for opening said Henry street between High street and Pearl street; that Henry street, as laid out on said replat of Winnebago, between High street and Pearl street had never been opened, traveled, or worked, and no highway taxes had ever been expended on said premises, and it had never been traveled or used as a route of travel; that the defendant, by its officers and agents, threatened to open said street, and passed a resolution, August 8, 1890, directing proceedings for that purpose, and would, unless restrained, tear down the buildings of the plaintiff situate thereon; that by reason of the premises the plaintiff would suffer irreparable injury in case said threats of the defendant were carried into execution; and, as a...

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36 cases
  • Boise City v. Wilkinson
    • United States
    • Idaho Supreme Court
    • 27 Marzo 1909
    ... ... In the ... case of Paine Lumber Co. v. Oshkosh , 89 Wis. 449, 61 ... N.W. 1108, the supreme court of Wisconsin held that ... ...
  • Kelley v. Salvas
    • United States
    • Wisconsin Supreme Court
    • 2 Mayo 1911
    ...Drake v. Curtis, 1 Cush. (Mass.) 395;Tufts v. Charlestown, 117 Mass. 401;Wheeler v. Stone, 1 Cush. (Mass.) 313;Paine L. Co. v. City of Oshkosh, 89 Wis. 449, 61 N. W. 1108.Sol. P. Huntington, for appellant.C. W. Lomas, for respondent.TIMLIN, J. The respondent brought this action of ejectment......
  • City of St. Joseph v. St. Joseph Terminal R. Co.
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    • 2 Junio 1916
    ...Railway Co., 241 Ill. 622, 89 N. E. 800; Chicago v. Railway Co., 244 Ill. 220, 91 N. E. 422, 135 Am. St. Rep. 316; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108; Colorado Springs v. Colorado City, 42 Colo. 75, 94 Pac. 316; Sioux City v. Railroad, 129 Iowa, 694, 106 N. W. 183, 113 ......
  • Town of Montevallo v. Village School Dist.
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    • 2 Junio 1916
    ...Co., 241 Ill. 662, 89 N. E. 800; Chicago v. Railway Co., 244 Ill. 220, 91 N. E. 422, 135 Am. St. Rep. 316; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108; Colorado Springs v. Colorado City, 42 Colo. 76, 94 Pac. 316; Sioux City v. Railroad, 129 Iowa, 694, 106 N. W. 183, 113 Am. St. ......
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