Thorndike v. City of Milwaukee

• Decision Date: 24 May 1910
• Citation: 143 Wis. 1,126 N.W. 881
• Parties: THORNDIKE ET AL. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

143 Wis. 1

126 N.W. 881

THORNDIKE ET AL.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

May 24, 1910.

Appeal from Circuit Court, Milwaukee County; William J. Turner, Judge.

Action by Maude K. Thorndike and others against the City of Milwaukee and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Siebecker, J., dissenting in part.

On the part of the appellants there were cited in support of the proposition that the appellants as heirs of the dedicator could maintain this action: Warren v. Lyons City, 22 Iowa, 351;Rowzee v. Pierce, 75 Miss. 846, 23 South. 307, 40 L. R. A. 402, 65 Am. St. Rep. 625. That a resident taxpayer could maintain the action: McIntyre v. Board of Com'rs of El Paso Co., 15 Colo. App. 78, 61 Pac. 237;Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070;Davenport v. Buffington, 97 Fed. 234, 38 C. C. A. 453, 46 L. R. A. 377; 2 Dillon, Mun. Corp. (4th Ed.) §§ 653, 914. That a municipality cannot use for purposes foreign to the dedication lands dedicated for a public park: Riverside v. MacLain, 210 Ill. 308, 71 N. E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164;Sachs v. Trustees of Towanda, 79 Ill. App. 439;Board of Education v. Kansas City, 62 Kan. 374, 63 Pac. 600;Portland & W. V. R. R. Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299;St. Paul v. C., M. & St. P. Ry. Co., 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184;Price v. Thompson, 48 Mo. 361;Fessler v. Town of Union, 67 N. J. Eq. 14, 56 Atl. 272,affirmed60 Atl. 1134, 68 N. J. Eq. 657. The objection that the complaint was not brought on behalf of plaintiffs and all taxpayers similarly situated was waived by failure to specifically demur on that ground. State v. Tuttle, 53 Wis. 45, 9 N. W. 791;Wood v. Union Gospel Ass'n, 63 Wis. 9, 22 N. W. 756;Manseau v. Mueller, 45 Wis. 430;Cawker v. Milwaukee, 133 Wis. 35, 113 N. W. 417. Public property cannot be used for the purposes here sought. Atty. Gen. v. Eau Claire, 37 Wis. 400;Wisconsin Keeley Inst. v. Milwaukee Co., 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105;State v. Davidson, 114 Wis. 563, 88 N. W. 596, 90 N. W. 1067, 58 L. R. A. 739;State v. Houser, 125 Wis. 256, 104 N. W. 77, 110 Am. St. Rep. 824;Brodhead v. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711;Weeks v. Milwaukee, 10 Wis. 242;Foster v. Kenosha, 12 Wis. 616. The city acquired no right by adverse possession because the land had been dedicated to the use of the public. Childs v. Nelson, 69 Wis. 125, 33 N. W. 587;Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001;Madison v. Mayers, 97 Wis. 399, 73 N. W. 43, 40 L. R. A. 635, 65 Am. St. Rep. 127;Ashland v. C. & N. W. Ry. Co., 105 Wis. 398, 80 N. W. 1101.

On the part of the respondent and as negativing the right of the plaintiffs to maintain this suit as heirs of the dedicator: Strong v. Doty, 32 Wis. 381;Mills v. Evansville Seminary, 47 Wis. 354, 2 N. W. 550;Donnelly v. Eastes, 94 Wis. 396, 69 N. W. 157;Greene v. O'Connor, 18 R. I. 56, 25 Atl. 692, 19 L. R. A. 262, and note; Adams v. F. B. Church, 148 Mich. 140, 111 N. W. 757, 11 L. R. A. (N. S.) 509, and note; Barclay v. Howell's Lessee, 6 Pet. 498, 8 L. Ed. 477;Williams v. Milwaukee Ind. Expo., 79 Wis. 524, 48 N. W. 665;U. S. v. Ill. Cent. Ry., 154 U. S. 225, 14 Sup. Ct. 1015, 38 L. Ed. 971;Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379, 24 Am. St. Rep. 715. To the point that appellants not being specially injured or damaged cannot maintain this suit as a class action: Manson v. South-Bound Ry. Co., 64 S. C. 120, 41 S. E. 832; 2 High on Injunctions (4th Ed.) § 1301; Williams v. Milwaukee Ind. Expo., 79 Wis. 524, 48 N. W. 665;Bell v. Platteville, 71 Wis. 139, 36 N. W. 831;Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829. That the Legislature, lawfully representing the public beneficiary, could authorize a change of the use where no property was taken and no private rights infringed: Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610;Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773;Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70;Clark v. Providence, 16 R. I. 337, 15 Atl. 763, 1 L. R. A. 725; 2 Dill. Min. Corp. § 651.

Hoyt & Olwell and Frank M. Hoyt, for appellants.

John T. Kelly, City Atty. (Walter H. Bender, Asst. City Atty., of counsel), for respondent City of Milwaukee.

Quarles, Spence & Quarles (J. V. Quarles, Jr., of counsel), for respondent Milwaukee Auditorium Co.

TIMLIN, J.

The complaint in this action averred that the plaintiffs are the sole heirs at law of Byron Kilbourn, who died testate on December 16, 1870, leaving surviving him his widow, Henrietta, and his son, Byron H. Kilbourn. His will, which was duly admitted to probate, after devising and bequeathing a life estate in certain real property and some personal property to his widow, devised and bequeathed all the rest, residue, and remainder of his estate one half to Byron H. Kilbourn and the other half to I. A. Lapham in trust for the plaintiffs. In the year 1897 Byron H. Kilbourn died intestate leaving surviving him the plaintiffs, his only heirs at law. Henrietta died, and the trust to I. A. Lapham has long since been executed and the property, which was the subject of that trust, conveyed to the plaintiffs. The plaintiffs also averred that they own two described lots within the limits of the plat hereinafter mentioned, and situate a short distance from the public square in question, but it does not appear that these lots abut on that square or on the streets in front of that square. One of the plaintiffs is a resident of Milwaukee. There is no averment that the suit is brought in behalf of the taxpayers of the city, no averment that either of the plaintiffs is a taxpayer, and that fact could only be deduced from the averment that plaintiffs own real estate in the city of Milwaukee. This averment is, however, inserted in the complaint for a wholly different purpose, namely, to show the interest of the plaintiffs in preserving the original dedication by reason of their ownership of lots in the plat as well as by force of their successionto the rights of Byron Kilbourn through their father and through execution of the Lapham trust. It is averred that on October 8, 1835, Byron Kilbourn being the sole owner in fee simple of fractional government lots 3 and 4, in the N. E. 1/4 of section 29, township 7 N. of range 22 E., in Milwaukee county, made and recorded a plat of these and other lands belonging to him in accordance with the act of the territorial Legislature of Michigan approved April 12, 1827. In and by said plat he dedicated to the public a described square, space, or tract of land 420 feet in length by 150 feet in width with the express proviso and condition duly written into and part of said plat certificate and dedication that said space or square or tract was to be left vacant as public ground, and no building was ever to be erected thereon by any body corporate or politic, except that in case of the town becoming incorporated the town authorities might erect a market house on such space. This dedication was duly accepted by “the public authorities.”

The Milwaukee Auditorium Company has taken steps under chapter 426, Laws 1905, to join with the city of Milwaukee in the erection and maintenance of an auditorium or music hall, each to pay half the money necessary for that purpose. The city raises its share by sale of its bonds which it has issued for this purpose to the amount of $250,000, and the Auditorium Company its share from the proceeds of subscriptions to its shares of capital stock. Plans and specifications have been prepared for a building 400 feet in length by 300 feet in width and 150 feet in height, with one or more auditoriums, offices, classrooms, studios, music halls, music rooms, gymnasiums, lodge rooms, and accommodations for industrial, commercial, scientific, educational, fraternal, and musical organizations, and labor associations desiring to use the same for kindred purposes, and defendants intend to operate and manage the building in the manner specified in chapter 426, supra. The defendants give out and threaten to, and are about to, proceed with the erection of this building on the public square or space above mentioned and upon a strip of land adjoining this on the west owned by the city. The building so proposed to be erected will completely cover the dedicated square or space, its erection and maintenance amount to an appropriation of the public square to private gain, and the diversion thereof to a purpose foreign to that for which the land was dedicated by the plaintiffs' said ancestor. Prayer that the defendants be enjoined from erecting this building on the public square and for general relief. The defendants answered jointly, denying that the use proposed was foreign to the purposes for which the land was dedicated, and averring, further, that from 1867 to 1881 this space in question was let or leased as a site for market buildings. The latter buildings were demolished in 1881, and the whole square covered by a building used for the purposes of an industrial exposition owned by a private corporation which held from the city of Milwaukee a lease of the ground, and this use continued until June, 1905, when the exposition building was destroyed by fire, and not rebuilt. This lease to the exposition company was authorized by chapter 461, Laws 1885. A claim of adverse possession is set up and a denial that the plaintiffs are wronged or injured or damaged by the acts in question. The cause was tried and the court made findings supporting the averments of the complaint, except as to the right of the plaintiffs to maintain the action, and further to the effect that the square or space in question remained wholly vacant and unoccupied from its dedication down to 1867 or 1868, during which time it was commonly known as “the Second Ward Park.” From that time for about three years, it was leased by the city to be...