Threedy v. Brennan
| Citation | 40 F. Supp. 69 |
| Decision Date | 11 July 1941 |
| Docket Number | Civ. A. No. 143. |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | THREEDY v. BRENNAN et al. |
Cornelius R. Palmer, of Chicago, Ill. (Dunn, Aarons & Roemer, of Milwaukee, Wis., of counsel), for plaintiff.
Charles E. Wilson, of Elkhorn, Wis., for defendants.
This is an action commenced July 31, 1939, to enjoin trespass and threats of trespass and invitations to the public to trespass upon the land owned by the plaintiff. The precise question here involved is: Does a public highway exist on that tract of land belonging to the plaintiff, designated on the plat as "Beach"? Plaintiff Threedy represents himself and three other beneficiaries under a trust agreement dated September 14, 1938. All are residents of Illinois. The land in question is valued in excess of $3,000. All of the defendants except John S. Syver are officers of the Town of Linn. The latter is the owner of lots in Wooddale Addition.
In June, 1925, J. Clarke Dean and wife conveyed to John A. Linden a tract of land situated on the south shore of Lake Geneva in the Town of Linn, Walworth County, Wisconsin. To secure the payment of the purchase price, Linden and his wife executed and delivered to Dean a trust deed, in the nature of a mortgage. The tract was thereafter surveyed and platted by Linden, and on April 27, 1926, the plat was approved by resolution of the Town Board of the Town of Linn, and three days later was recorded in the office of Register of Deeds.
At the time that the conveyance was made and trust deed executed, it was contemplated that the real estate involved would be subdivided into ten parcels, each fronting on the lake. On June 27, 1929, Linden, as owner of the fee of Wooddale Addition, and J. Clarke Dean executed another agreement whereby the provisions of the trust deed were modified relative to partial releases. By this agreement certain designated lots, as shown on the plat of Wooddale Addition, were to be released upon the payment of specified sums.
Lots in the new subdivision were sold from time to time, and as to them partial releases from the trust deed were obtained. However, the indebtedness was not paid in full, and in 1932 a foreclosure action was commenced in the Circuit Court of Walworth County. The judgment of foreclosure and sale was filed on July 5, 1933, and on August 25, 1934, the sheriff sold and conveyed to one George A. Kennedy all of the property covered by the trust deed, which included all of the lots and purported roads and highways in the subdivision and tract of land known as "Beach". The sale was confirmed by the Circuit Court on September 17, 1934. Thereafter, on October 29, 1936, George A. Kennedy and wife conveyed the roads and highways in Wooddale Addition to a nonstock, non-profit association composed solely of the property owners in the subdivision. On September 13, 1938, Kennedy and wife conveyed to plaintiff, by quitclaim deed, the lake front area shown on the plat as "Beach".
The accompanying diagram shows that portion of the plat of Wooddale Addition in which the land in question is located. An examination thereof discloses the irregular shape of that part of the area designated as "Beach" and also that section of "Beach Road" which leads into "Beach". It will be noted that the areas designated as roads in this portion of the plat are customarily 40 ft. in width. This is true as to "Beach Road" until it reaches a point about 75 ft. south of the center of the area marked with two circles, which has been described in the testimony as "Turn Around". From that point until it reaches the Turn Around area, the road gradually widens. The plat designates the width of the Turn Around area to be 95 ft. The east boundary of the "Beach" area extends in a comparatively straight line from the Turn Around to the lake shore. The west boundary runs in a straight line in a northwesterly direction until it reaches a point about 30 ft. from the lake shore where it sharply jogs about 50 ft. to the west, and then runs 30 ft. north where it reaches the lake shore.
In 1926 the defendant Gavin was employed in his private capacity as a road constructor to build the "Beach Road" and "Turn Around". He did so, using as his guide therefor the recorded plat of Wooddale Addition. At the outer circumference of the Turn Around on the north side, he erected a number of posts in such a manner that it was impossible to drive an automobile past that point. From time to time thereafter boards were added to these posts, creating a fence. "No Trespassing" signs were posted in the immediate vicinity.
On May 6, 1936, prior to the time when plaintiff purchased the "Beach" property, six freeholders of the Town of Linn filed a petition in the Town Clerk's office, requesting the defendant supervisors to lay out a highway in Wooddale Addition. The petition recited that the highway was designated on the recorded plat as "Lakeview Road", "Beach Road" and "Beach", and also as "Lot A", "Lot B", "Lot C", "Lot V", "Lot W", and that part of "Linden Road" marked "Lot E", except that part of the "Lakeview Road" marked as "Lot X". A notice was duly published to the effect that a meeting would be held at the house of the Town Clerk at a designated hour on May 20, 1936. At the appointed time the supervisors met and, after satisfying themselves that the required notice of the meeting had been given, proceeded with the hearing. On the same day they caused an order to be entered and recorded in the record book of the Town Clerk that the supervisors determine that the highway petitioned for was to be laid out and taken over by the Town. No award of damages was made, nor was a release of damages obtained from anyone.
By order of the supervisors, the highway patrolman of the Town graded the road in question. On June 26, 1936, the fence at the edge of the Turn Around was removed by the Town Assessor, and the following day he mowed the grass on the area between the Turn Around and the shore of the lake. Thereafter some gravel was hauled in and placed in spots which were soft, and a gravel path to the lake was established. A culvert was installed. In 1937 the fence posts which had been removed by the Assessor were replaced by one of the plaintiff's beneficiaries, and in April, 1939, boards were added thereto. The following month the defendant Gavin, acting for the Town, again tore down the fence and warned plaintiff's beneficiaries not to obstruct what he designated as the highway.
The defendant urges that there was a dedication for highway purposes, and an acceptance. The law was early established in Wisconsin that, in order to constitute a valid dedication of a highway to the public, an intention by the owner to so dedicate must be established. Gardiner v. Tisdale, 2 Wis. 153, 193, 60 Am.Dec., 407; Tupper v. Huson, 46 Wis. 646, 649, 1 N.W. 332.
There is nothing on the plat to indicate an intention to designate a public highway in the area between the Turn Around and the lake shore, except possibly the fact that the eastern and western boundaries of the "Beach" area extend toward the lake from the extreme outer edges of the circle at the Turn Around; also, that there is no solid line at the Turn Around to indicate the northern boundary of "Beach Road" (Lot W). The contrary intention is shown by the establishment of the Turn Around itself. Two similar turn around areas are shown in the plat. Each is located at the terminal of a roadway. One is at the northerly end of the Fair Oaks Road, and the other is at the easterly end of Lakeview Road. The same contrary intention is indicated by the erection by the platter of the posts at the Turn Around area which was for the sole purpose of preventing the use of the "Beach" area as a highway. It is likewise very evident that the platter had something other and different than a road or highway in mind when he used the word "Beach", as distinguished from the words "Beach Road".
The evidence discloses that there was some use made of the "Beach" area by owners of land in Wooddale Addition. There can, however, be no dedication to a limited part of the public. A use, restricted to owners of adjoining land, might under certain circumstances become a private way, but no public rights would arise from such use. Tupper v. Huson, supra. Nor can it be said that there was an intention to dedicate the "Beach" area to the general public as a beach. Sec. 236.11 of the Wisconsin Statutes of 1925 provides: "When any map shall have been made, certified, signed, acknowledged and recorded as above in this chapter prescribed every donation or...
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