Spence v. Frantz

• Decision Date: 07 February 1928
• Citation: 217 N.W. 700,195 Wis. 69
• Parties: SPENCE ET AL. v. FRANTZ ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 69

217 N.W. 700

SPENCE ET AL.

v.FRANTZ ET AL.

Supreme Court of Wisconsin.

Feb. 7, 1928.

Appeal from an Order of the Circuit Court of Milwaukee County; Oscar M. Fritz, Circuit Judge. Affirmed in part; reversed in part.

Action begun December 27, 1926, by William S. Spence and E. R. Spence against Harry S. Frantz and Bessie A. Stratton to compel the specific performance of a contract to convey land. This appeal was taken from an order entered May 31, 1927, overruling demurrers to portions of the answer.

Harry S. Frantz and Bessie A. Stratton entered into a contract to convey to the plaintiffs “the following described land: Contained in Stone's subdivision in sections nine (9) and ten (10) in the town of Greenfield, consisting of one hundred and ten acres (110) more or less, said acreage to be determined by survey.” The survey disclosed that there was 110 1/4 acres in the lands owned by the defendants, of which 5 1/2 acres were subject to the easement of public highways laid out adjacent to or through said lands.Lenicheck, Boesel & Wickhem, of Milwaukee, for appellants.

Olwell & Brady, of Milwaukee, for respondents.

STEVENS, J.

(1) The first question presented is whether the contract required the plaintiffs to pay for the land in the public highway at the rate of $850 an acre. The determination of this question depends upon the intent of the parties as expressed in their contract when that is viewed in the light of the established rules of law with reference to which they must be held to have contracted.

[1][2] It has long been the established law in Wisconsin that the abutting owner has title to the center of the highway or street adjacent to his property, subject to the public easement. It is equally clear that the conveyance of abutting property transfers the legal title to the land to the center of the adjacent street or highway, in the absence of a clear intent to the contrary, even where the conveyance names the highway as the boundary of the parcel conveyed. Gove v. White, 20 Wis. 425.

The rule just stated was adopted to guard against the bootless and almost objectless litigation that might spring up to vex and harass the owners of land adjacent to public highways if the title to the land in the highway, with its attendant right to use this land in any way which did not interfere with the rights of the public, should remain in the original owner of the land. “To have this rule of the least practical importance to cure the evil which it is adopted to remedy, it must be applied to every case where there is not expressed an evident and manifest intention to the contrary--one from which no rational construction can escape. The rule, to be of any practical utility, must be pushed somewhat to the extreme of ordinary rules of construction, so as to apply to all cases, where there is not a clearly expressed intention in the deed to limit the conveyance short of the middle of the * * * highway. * * * ‘The idea of an intention in the grantor to withhold his interest...