Reilly v. City of Racine

• Decision Date: 24 March 1881
• Citation: 8 N.W. 417,51 Wis. 526
• Parties: REILLY v. CITY OF RACINE.
• Court: Wisconsin Supreme Court

51 Wis. 526

8 N.W. 417

REILLY

v.CITY OF RACINE.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Racine county.

Wm. C. White and C. J. Reilly, for appellant.

John B. Winslow, for respondent.

ORTON, J.

In 1849 the state of Wisconsin, by its proper agencies, laid out and platted, according to the statute, on the sixteenth or school section, the school-section addition to the city of Racine, and on said plat was marked, like the other streets on the same, Racine street, lying between blocks 67 and 68. Afterwards, in the same year, the state sold to one David L. Barton, under whom the plaintiff claims title, these two blocks. It is claimed by the appellant, and assumed to be true, that no possession or occupancy of the part of the street lying between these two blocks had been taken possession of by the plaintiff, or those under whom he claims title to the blocks, until 1857, and that, then and since, they or some of them fenced it up with the blocks, and in 1863 planted upon such part of the street four trees, and since then built thereon certain buildings, and have had continuous possession of the same ever since, and that that part of the street has never been opened, worked, or used until the action of the city authorities complained of. Many of the streets on this plat have been opened, improved, and used from time to time, as their use was necessary to the public, and nearly all of Racine street has been so opened, improved, and used, except that part between these two blocks. The city authorities, from the time of the original platting, have made maps and exercised supervision of this addition, and opened the streets of the same when necessary, the same as in the main city plat.

This complaint is to enjoin the city authorities from opening that part of Racine street between the two blocks now belonging to the plaintiff, and is predicated upon the following grounds: First, that there has never been any acceptance by the public, or on behalf or for the use of the public, of Racine street, and especially of this portion of it, until the plaintiff's right to the locus in quo had been acquired by an adverse possession of 20 years; second, that this portion of Racine street had been vacated by the city. The learned and eminent counsel and party plaintiff has furnished this court with a very able brief upon, and most ably argued, many questions which do not appear to be in the case as made by the complaint, such as the statute of limitations, nonuser, and equitable estoppel. But, as we view the case, they may as well be included with the ground stated in the complaint of adverse possession, as they are alike affected by the principle upon which such adverse possession fails to be the foundation of any right in the plaintiff. The complaint fails to state the most important facts which constitute adverse possession, viz.: that the possession, though quiet, peaceable, and continuous, was adverse, or that the entry or possession was under color or claim of title. Whitney v. Powell, 1 Chand. 52;Edgerton v. Bird, 6 Wis. 527;Pepper v. O'Dowd, 39 Wis. 538;Wilson v. Henry, 40 Wis. 594. But as this question was presented and argued, it may be proper to say that there was no proof of these essential facts. On the other hand, the only claim of the plaintiff to this portion of the street is predicated upon the fact that the plat was regularly laid out and established, and that the plaintiff thereby became the owner of the fee of the street, subject to the public easement, and by being the owner of the two opposite and adjacent blocks, which is a concession of the public easement, and that the entry upon the street, in the first place, to the exclusion of the public, was wrongful. But it is claimed that the public use had been abandoned and lost by non-user. Not so, however, when the entry was first made in 1857,...