Van Valkenburgh v. City of Milwaukee

Lyoít J. I. For the purpose of making the assessments of damages and benefits, it was necessary tbat the jury should ascertain the value of the appellant’s lots appropriated for the purposes of the park, or affected by the improvement. Tbe existence or non-existence of a public highway or street over the strip of land known as Lake street, was certainly an element to be considered in determining such value. Tbe lots may be more valuable if the public has no easement upon them, than they would be did the easement exist. It seems very clear, therefore, tbat the question as to whether such strip is or is not a public street, was a proper one for adjudication by the circuit court on the trial of the appeal from the assessments, made by the board of public works. Had the board merely assessed the damages and benefits to the appellant’s lots, without making any mention of Lake street, and bad section 5 of the act of 1868 been entirely omitted from the act, we should still be of the opinion tbat the question was properly .before the circuit court for adjudication on the trial of the appeal from the assessments of damages and benefits taken under section 3 of the same act. Tbe appellant must show title to the lands affected by the appeal, or to some part thereof, or bis appeal should be dismissed, and it seems inevitable tbat be must be permitted to show the nature and extent of his estate therein, for upon these may depend, in a great measure, the amount wbicb be is entitled to recover. If these views are correct, it is quite unnecessary to pass upon the effect of tbat portion [342] of this appeal wbicb is evidently predicated upon section 5. We prefer to postpone the determination of this question until we decide the case of Emmons v. The City of Milwaukee, argued at the present term, in wbicb case it is understood the question is of great importance. II. If the strip of land known as Lake street is a public bigbway or street, it is sucb because the proceedings in the partition suit in 1842, the subsequent recognition of the validity of the partition plat by the several owners of the lots under the decree in the partition suit, and the city ordinance of 1853, establishing the grade of Lake street, constitute a valid dedication thereof to the public use; for there is no proof that the strip was ever used by the public as a street, or that any other acts have been done wbicb tend to show a dedication thereof. Tbe facts that, after the partition was made, the owners conveyed lots or blocks assigned to them respectively by the decree of partition, according to the commissioner’s plat, and that the grade-of Lake street was established by the ordinance of 1853, would seem to be of no importance, unless sucb plat is, on its face, a dedication of the strip of land known as Lake street to the public use. Tbe acts of the owners may be important in determining the validity of the plat, and the ordinance may tend to show an acceptance by the public of the dedication, if the plat operates as a dedication. But if it does not so operate, it is not perceived bow either of these facts can be material. Hence, the controlling question to be examined is, does the partition plat purport, on its face, to dedicate to the public use the strip of land included between the red lines thereon, and known as Lake street ? Or, stating the question in another form, dues the plat show, or tend to show, that the commissioners intended thereby to make sucb dedication ? Tbe plat certainly contains no evidence of sucb intent, except sucb as is furnished by tbe presence of tbe red lines upon it. Strike these out, and there is nothing left upon wbicb to [343] found a claim of dedication. What tben is tb.e. significance of those lines ? It is true that tbe most of them are drawn where the lines of streets would be located, were the streets in the adjoining tracts extended across the fractional lot. It is also true that the partition plat shows the relative locations of such streets in the adjoining tracts, to such plat, and the names of those streets. It may also be conceded to- be necessary that the public should have the right of way over the lands included between the red lines. Were this all that is known of the intentions of the commissioners, it is quite possible that, on the authority of Ely v. Bates, 5 Wis., 467, we might be justified in holding that there was a dedication, although in that case the notes of survey indorsed on the plat expressly recognized the locus in quo as a public street But the partition plat furnishes further information concerning the intentions of the commissioners in this respect. 1. The whole tract is included in the lots and blocks; the lines of lots invariably cut the red lines and extend to the black lines, which are invariably in the center of the strips between the red lines, except that the west line of the plat is not precisely parallel to the strip through which it runs. In this particular this case is believed to differ from all of the cases decided by this court, which are cited by the learned counsel for the respondent. 2. The explanations upon the plat expressly state the object and purpose of the red lines. The commissioners there inform us that these are imagino,ry lines drawn there for the purpose of “ showing the form and dimensions of the lots and blocks as they would appear if the streets of the town adjoining were extended through the tract.” It seems very clear that this language, taken in connection with the balance of the plat, negatives any intent on the part of the commissioners to dedicate streets. It is possible that they doubted their power to do so, but however that may be, they doubtless believed that, in case public streets should be extended through the tract thereafter, [344] such streets would, necessarily be located to correspond with those in the adjoining town, and so they drew the red lines to show how the lots and blocks on the plat would be affected thereby in case such streets should afterwards be established. The commissioners speak of these red lines as being “ imaginary” lines. It is fair and reasonable to infer that by this is meant that they denote the lines of imaginary streets, or streets which might afterwards be established, but which were not intended to be established or dedicated by the plat. The conclusion which we have reached is, that the testimony fails , entirely to show that the strip of land known as Lake street, across the lots of the appellant, is a public street, and inasmuch as the charge of the court and the assessments of damages, and benefits by the jury, are based upon the opposite hypothesis which may have affected the verdict, adversely to the appellant, there must be a new trial. By the Court.— Judgment reversed and a venire de novo awarded.