Royal Transit, Inc. v. Village of West Milwaukee

Decision Date02 March 1954
Citation63 N.W.2d 62,266 Wis. 271
PartiesROYAL TRANSIT, Inc. v. VILLAGE OF WEST MILWAUKEE.
CourtWisconsin Supreme Court

Action commenced by plaintiff Royal Transit, Inc. against defendant Village of West Milwaukee for a permanent injunction requiring defendant to remove a barricade in South 40th Street in Milwaukee which prevents plaintiff's free and unobstructed use of said street and enjoining defendant from erecting a similar barrier in the street, and for damages suffered by reason of the barricade. Each of the parties moved for summary judgment and plaintiff waived its claim for damages in order that the question of law might be summarily determined. The motion of the plaintiff was granted. Defendant's motion was denied and from that part of the order denying said motion, defendant appeals. Defendant also appeals from the judgment entered in favor of plaintiff, requiring defendant to remove the barricade and enjoining it from erecting a similar obstruction and awarding costs and disbursements to plaintiff.

Further facts will be stated in the opinion.

Allen J. Busby, Milwaukee (C. R. Dineen, Milwaukee, of counsel), for appellant.

Eugene Wengert, Erbstoeszer, Cleary & Decker, Milwaukee, for respondent.

MARTIN, Justice.

Plaintiff is an Illinois corporation having its Milwaukee office and truck terminal at 735 South 39th street in the Village of West Milwaukee. Its business is that of common motor carrier of property in interstate commerce. It owns a tract of land fronting on South 39th street and extending west for a depth of about 286 feet. It also leases a strip of land along the west line of its property, said leased land being thirty feet wide and running some 400 feet north and south. The line at which plaintiff's land and the leased land join coincides with the center line of South 40th street extended north, but the north end of South 40th street dead-ends at the south line of plaintiff's lands, which dead end is approximately 360 feet north of West National avenue.

On June 16, 1952 defendant Village adopted an ordinance declaring South 40th street north of West National avenue restricted against heavy traffic and in January, 1953 erected a barricade at the north terminus of said street extending the full width of the street. Prior to the erection of the barrier plaintiff's vehicles had used the north end of the street to enter and leave the truck terminal. Plaintiff has no property on either of the lateral boundaries of South 40th street.

Sec. 80.47, Stats. provides, in part:

'The owners of land abutting on any highway, street or alley shall have a common right in the free and unobstructed use thereof to its full width * * *.'

It must be made clear from the outset that there is but one question involved, that of plaintiff's right of access to its property from South 40th street. The various issues raised by appellant grow out of the question whether plaintiff's property 'abuts' on South 40th street within the meaning of the statute.

This court has never considered the precise question, but the United States supreme court has observed that:

'The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy.' Sauer v. City of New York, 1907, 206 U.S. 536, 27 S.Ct. 686, 690, 51 L.Ed. 1176.

As to who is an abutter, it is stated in 10 McQuillin, Municipal Corporations, 3rd ed., § 30.55, p. 657:

'When no land intervenes between the land of the abutter and the street, his property is said to 'abut.' If the property does abut, the lot line and street line are in common. Of course, where there is no physical connection between the lot line and the street line, the owner of the lot is not an abutter.'

In our opinion this definition is the proper one to apply here. That part of sec. 80.47, Stats. referred to above simply states the common law right of a property owner to the free and unobstructed use of streets and highways upon which his land abuts. There is nothing in the language or intent of the statute which requires a different interpretation of the word 'abutting' than the general one given by McQuillin that the lot line and the street line must be in common.

A number of authorities are cited in the briefs from this and other jurisdictions in which the word 'abutting' has been defined, but most of such cases have concerned the rights of owners of land abutting on the lateral boundaries of the street and have, moreover, considered the meaning of the word in relation to questions other than that of access. We recognize that the rights and obligations of a property owner who has a reversionary interest in the street may be different from one whose property simply has a common line with the street line, so far as improvements, assessments and discontinuance of the street are concerned.

The only case which is squarely in point is Johnson v. Town of Watertown, 1944, 131 Conn. 84,...

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15 cases
  • Voss v. City of Middleton
    • United States
    • Wisconsin Supreme Court
    • June 19, 1991
    ...Stats. However, the court of appeals determined that the statute was clear and unambiguous and, relying upon Royal Transit, Inc. v. West Milwaukee, 266 Wis. 271, 63 N.W.2d 62 (1954), proceeded to conclude that Madison and Voss, either or both of them, were "abutting" owners insofar as their......
  • 118th St. Kenosha, LLC v. Wis. Dep't of Transp.
    • United States
    • Wisconsin Supreme Court
    • December 10, 2014
    ...or occupancy of land abutting thereon.’ ” Hastings Realty, 28 Wis.2d at 310, 137 N.W.2d 79 (quoting Royal Transit, Inc. v. Village of West Milwaukee, 266 Wis. 271, 277, 63 N.W.2d 62 (1954) ). “ ‘[H]ighway access rights are but one of a bundle of rights which appertain to a parcel of real es......
  • City of San Antonio v. Pigeonhole Parking of Texas
    • United States
    • Texas Supreme Court
    • February 26, 1958
    ...a legislative act creating the Board of Commissioners as not empowering the Board to deny the permit. In Royal Transit Co. v. Village of West Milwaukee, 266 Wis. 271, 63 N.W.2d 62, it appears that the decision was based upon statutory grounds. The issue was resolved by a determination of wh......
  • Iowa State Highway Commission v. Smith, 49186
    • United States
    • Iowa Supreme Court
    • May 7, 1957
    ...of premises abutting a highway has all the rights of access thereto of the owner during his tenancy. Royal Transit, Inc., v. Village of West Milwaukee, 266 Wis. 271, 63 N.W.2d 62, 64, and Nor have defendants been deprived of reasonable access to their dwelling on the south side of Hubbell A......
  • Request a trial to view additional results

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