Arnold v. Elmore

By the Court, Cole, J. After the former decisions of this court, but little remains to be said upon the legal questions involved in these cases. For it must now be considered as the settled doctrine of this state, that purchasers of lands lying upon the banks of a stream, and bounded by the stream, are presumed to run to the center of such stream, unless the contrary intent appears. Jones vs. Pettibone, 2 Wis., 308. Efforts bave been made to restrict this rule, when applied to lots numbered and platted upon a city or town plat, and to induce the court to' bold, in sucb a case, that the lines bounding the lot marked the extent of the grantee’s title, but to no purpose. Mariner vs. Schulte, 13 Wis., 692; Walker vs. Shepardson, 4 id., 486; Kimball vs. Kenosha, id., 321. Is there, then, any evidence in these cases to rebut that presumption, and to show that the original proprietors of fraction No. 6, section 27, township 7, in Milwaukeé county, when they laid out and [515] platted that fraction into lots and blocks, intended to reserve any portion of the area east and south of blocks 157 and 158 ? It seems to us that there is no ground for any such presumption in this case, but that the contrary inference is irresistible. It will be noticed that the proprietors, when they laid out fraction 6 into blocks and lots, did not indicate, by anything on the plat, that this area or bayou was reserved, although an area designated as a basin for the proposed canal was marked “reserved.” If a reservation was intended, it is a little remarkable that it was not expressly made upon the face of the the plat, as well in one case as the other. Again, the commissioners appointed to make a partition of these lots among the proprietors, of whom the appellant was one, adopted the plat of the proprietors as showing the property to be divided. They make a division of the lots upon that plat. And in the note which they make on their plat, explaining it, they say the “ water lots are 40 feet wide; regular interior lots are 50 feet wide and they make the following statement. “ It is proposed that if the streets, river and proposed canal should not be continued as public highways, that then the lots opposite shall be extended to the center of such street,” &c., &c. This report and partition made by the commissioners has been confirmed, although professing to make a full division of that fraction, No. 6. Now if the proprietors had understood or supposed that there was any part of fraction six not embraced in this division, it is singular that the report, which professed to divide the whole fraction, was not modified so that this fact might become manifest. But instead of this, the report was confirmed, with the note of the commissioners upon their plat, stating that upon the discontinuance of any highway, or river, &c., then the lots opposite should extend to the center of the street or .river. What stronger evidence could be afforded', that the original proprietors of fraction 6, when they-platted it¡ intended that the lots bounded by a highway or river should extend to the center of the highway of river, subject of course,:.. [516] to the public easement, without any reservation whatever, except where it was made for the proposed canal ? This is the clear intention manifest from the plat and the record in the partition suit, and of course could not be removed by parol evidence. The judgment of non-suit, must therefore be affirmed.