Andrews v. Youmans

Cassodat, J. All antecedent and contemporaneous verbal negotiations and agreements between the parties respecting the purchase of the lot must be regarded as having merged in or been excluded by the deed from the defendant to the plaintiff executed and delivered October 20,1886. Herbst v. Lowe, 65 Wis. 320, 321. It is conceded that that deed conveyed to the plaintiff lot 1 in block A of Youmans’ addition to the village; that the same fronted on Clarendon avenue; and that at least some of the trees cut and removed by the defendant stood, at the time of such conveyance, on the half of the street adjoining the lot. By virtue of that deed, the plaintiff took title to the center of the avenue, subject to the public easement. Kimball v. Kenosha, 4 Wis. 321; Weisbrod v. C. & N. W. R. Co. 21 Wis. 609; Pettibone v. Hamilton, 40 Wis. 402; Donohoo v. Murray, 62 Wis. 100. No acceptance by the public was essential in order to give to the plaintiff such title to the center of the avenue. Ibid. Such being the law, it is obvious' that the defendant had no legal right to remove, for private purposes, any trees standing upon the half of the street belonging to the plaintiff. It may be that the public authorities had the right to remove such trees as were essential to fit the street for public travel, but certainly nothing more. Houston v. Fort Atkinson, 56 Wis. 350; Brickwell v. Hamele, 57 Wis. 494; Smith v. City Council, 63 Am. Dec. 298; Rich v. Minneapolis, 37 Minn. 423; Viliski v. Minneapolis, 40 Minn. 304. [59] The learned counsel for tbe defendant claims that the action is brought under sec. 1845, E. S., and that the complaint is insufficient for that purpose in that the town board did not, until after the commencement of the action, make any order declaring the street in question to be a public highway, in accordance with sec. 1224, S. & B. Ann. Stats.; and, also, in that the action is in its nature for a penalty or forfeiture, and hence should have been brought in the name of the state, as prescribed in sec. 3295, E. S. But we think the complaint at least states a good cause of action in trespass, and that the evidence was sufficient to have taken the case to the jury; and hence that the nonsuit was improperly granted. By the GouH.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.