Smith v. City of Beloit

• Decision Date: 27 September 1904
• Citation: 122 Wis. 396,100 N.W. 877
• Parties: SMITH v. CITY OF BELOIT ET AL.
• Court: Wisconsin Supreme Court

122 Wis. 396

100 N.W. 877

SMITH

v.CITY OF BELOIT ET AL.

Supreme Court of Wisconsin.

Sept. 27, 1904.

Appeal from Circuit Court, Rock County; B. F. Dunwiddie, Judge.

Action by Nellie K. Smith against the city of Beloit and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

The following is a plat showing the property in controversy, referred to in the opinion:

IMAGE

This is an action to quiet the title to lands fronting on Public avenue, in Beloit, and to establish the boundaries of that avenue, and for a mandatory injunction. The respective defendants answered by way of admissions, denials, and counter allegations, and prayed a dismissal of the complaint, and some of them by way of counterclaim alleged that the plaintiff's buildings were in such avenue, and sought to have them removed therefrom, and for an injunction to maintain the avenue, as claimed by them, unobstructed. The plaintiff, by way of replies, put in issue the several allegations of such counterclaims. It is undisputed that Public avenue is bounded on the east by Pleasant street, and on the west by Turtle street, now known as State street, which extends to the easterly shore of Rock river; that the plaintiff owned lands upon the north side of Public avenue, and abutting thereon, and that the defendants Burdge, Voorhees, and Greene, respectively, owned lands on the south side of public avenue, and abutting thereon. The principal issue involved is as to the location of the lawful boundary lines of Public avenue.

A trial having been had, the court, in addition to admitted facts, found as matters of fact, in effect: (1) That November 26, 1838, one Robert P. Crane entered fractional lots 6 and 7 in section 35, in township 1 north, of range 12 east, within which the original village of Beloit was wholly located. That said lots were bounded on the north by the quarter section line, on the east by the east line of that section, and on the south by the south line thereof, and on the west by Rock river. (2) That March 18, 1839, Crane, as the owner of said fractional lots, and one Otis P. Bicknell, as the owner of fractional lot 5 in the same section (being lands adjacent thereto on the east and north), caused the lands so owned by them to be surveyed, and a village plat thereof to be made by one A. W. Doolittle, marked “Map of Beloit,” which, together with the descriptive notes thereon, constituted one paper, followed by a certificate of Doolittle, as county surveyor, that the same were true and correct, and certified by Crane and Bicknell and two others to be true and correct, and acknowledged by Crane and Bicknell before a justice of the peace, to the effect that such certificate was executed by them according to law, and the same was recorded in the register's office September 24, 1839. That there are delineated upon said plat blocks, streets, and public grounds. That the blocks are subdivided into lots, which lots are numbered with progressive numbers, but the length and width of said lots are not marked on said blocks or plat. That among the blocks so delineated is one numbered 46, which is bounded on the east by Pleasant street, on the south by Public avenue, and the north end of an area marked “Public Landing,” and on the west by Rock river, and is subdivided into 8 lots fronting easterly on Pleasant street, and extending westerly to the river. That said lots are numbered in progressive numbers from lot 1 on the south side of said block 46 to lot 8 on the north side thereof. That there is also a block delineated on said map and numbered 47, which is bounded on the east by Pleasant street, on the south by School street, and on the west by Turtle (now State) street, and on the north by Public avenue. That immediately south of block 47 is block 48, bounded by School street on the north, Pleasant street on the east, Broad street on the south, and Turtle or State street on the west. That immediately west of block 48 is block 59, bounded on the east by Turtle or State street, on the south by Broad street, and on the west and north by Public Landing and Rock river. That there is also delineated on said map and upon the east bank of Rock river an area or strip of land extending from block 59 on the south to block 46 on the north, and which is bounded on the east by Turtle street, and marked “Public Landing.” That the street delineated upon said map as lying between blocks 46 and 47 is marked thereon “Public Avenue,” and widens from the west line of Pleasant street westerly, and in accordance with the bearing of the south line of block 46. That is to say, measured by the scale of that map, Public avenue on the west line of Pleasant street is 74 feet wide, and the width of Public avenue on the west line of block 47, projected northerly across that avenue to block 46, is 144 1/2 feet. (3) September 26, 1839, Crane, by warranty deed duly executed, conveyed to one Selva Kidder all of block 47 in the village of Beloit, “and for a more full description of the same” reference was therein “had to the recorded map of said village,” which was the Doolittle map mentioned; and that deed was recorded September 27, 1839. May 14, 1840, Crane and wife conveyed lots 1 and 2 in block 46, as designated on the Doolittle map, to one Phillip Kearney; being all the lands in that block abutting on Public avenue. (4) July 28, 1840, Crane, owning lands in fractional lots 6 and 7, and Bicknell and White, owning adjoining lands on the east and north, filed in the register's office another plat of said fractional lots and adjoining lands, which plat is marked “Map of Beloit,” and made by John Hopkins, and embraces the same lands as the Doolittle plat and additional lands owned by White, and indorsed thereon is the certificate of Hopkins as county surveyor that the descriptions and plat were correct; and also the certificate of Crane, Bicknell and White, as owners and proprietors, to the effect that they had caused the lands to be so surveyed, platted, and described therein in good faith, and in the belief that the same were correct; that at the same time Crane and Bicknell certified in the presence of witnesses that they had caused the Doolittle plat to be made, the description of which was returned in blocks only, and that they had then caused this additional survey into lots to be on the same principle of the Doolittle survey, and that all former and subsequent descriptions of lots and blocks would be found explicit and correct by the Hopkins plat and description, and the same was acknowledged by Crane, Bicknell, and White August 6, 1840, and by them recorded August 16, 1840. (5) That in making and recording the Doolittle plat and the Hopkins plat, Crane intended to dedicate to the public all streets delineated thereon, and within fractional lots 6 and 7, including Turtle or State street, Public avenue, Pleasant street, and School street. (7) At the time of making the Doolittle plat--March 18, 1839--one Caleb Blodgett was residing on the south side of block 47, in a dwelling house extending across the south line thereof, as shown on that map. That the lots and blocks shown upon that map, so far as occupied, were at first, and for many years thereafter, fenced to keep out animals running at large. That until 1842 there was no bridge across Rock river in the village, and so during that time the river was crossed at a ford reached from the westerly end of Public avenue by crossing the north end of Public Landing. That such use by the public was continued for more than 15 years after the making of the Doolittle plat. That in 1842 a toll bridge across the river was built by a private company, which was reached by the public at the southeasterly end by crossing the south end of Public Landing. That prior to October, 1841, block 47 was fenced. That the line of occupation on the north side thereof, as it existed in 1841, has continued from that time to the time of the trial without any change. That the south line of block 46, as then occupied, was also marked by a fence built prior to October, 1841; and that Public avenue west of Pleasant street, as marked by the fences constructed prior to that time, angled from the west line of Pleasant street to the north, as mentioned above. Prior to 1843 there was built upon the southwest corner of block 47 a frame hotel, called the “Rock River House,” which remained as first located until 1853, when it was removed by the owner to the northwest corner of block 47, and fronted on Public avenue, where it still remains, except the part destroyed by fire in 1898. That upon such removal a brick building was constructed on the southwest corner of that block, which remained as located in 1853 to the time of the trial. (6 and 7) In 1846 Blodgett beganto occupy his brick house located on the north half of lots 7 and 8 in the northeast corner of block 47, which still remains, and is now owned by the defendant Greene. That the premises so occupied by Blodgett were fenced on the east and on the north and along the present lines of occupation. That a row of trees was planted along the north fence thereof, and about six feet therefrom, some of which are large, and still remain. Along the fence on the south line of lot 1, block 46, prior to 1841, a row of trees was planted, which still remain, and are very large. The south line of occupation of lot 1, block 46, as first established, was continued without change until 1870, when E. P. King, who then owned that lot, moved that fence south to a line located and defined by ordinance known as “No. 39,” (11) adopted on his petition on September 5, 1870, and that such fence remained upon the line so defined until 1883, when King moved such fence south to within 28 feet of the sidewalk on the northwest corner of block 47. (6) In August, 1868, the title to lot 1, block 46, became vested in E. P. King, father of the plaintiff, by mesne conveyances from Kearney, to whom Crane...