Paine Lumber Co. v. City of Oshkosh

PiNNby, J. 1. The appellant claims that the premises in ■dispute, by reason of the replats mentioned,' which were recorded, respectively, in 1859 and in 1870, became a public ■street of the city, which it has the right, through its officers, to now' open for public travel; and the plaintiff resists this claim on the ground that the city and its officers are es-topped by matter in pais from enforcing such claim. The replats so made and recorded by the proprietors of the lands operated as a statutory dedication and conveyance of the land intended to be for streets, alleys, ways, commons, or other public uses, and it is held in the corporate name of. the city, in trust for the uses and purposes expressed and intended. E. S. sec. 2263; Gardiner v. Tisdale, 2 Wis. 153. The fee did not pass, but only the use in trust for the purposes specified. The proprietors or lot owners retained the fee on either side to the center of the street (Kimball v. — 456 — Kenosha, 4 Wis. 321; Weisbrod v. C. & N. W. R. Co. 18 Wis. 35; Pettibone v. Hamilton, 40 Wis. 402); and no formal acceptance by tbe public authorities was necessary (Williams v. Smith, 22 Wis. 594; Pettibone v. Hamilton, supra). The part of Henry street between High street and the Fox river on the south has never been opened to public travel or improved as a street, and the circuit court held that the right of the city authorities to open and fit it for travel had been barred by sec. 1294, S. & B. Ann. Stats., which provides that “ ever jpublio highway already laid out, or which shall hereafter be land out, shall cease to be considered á public highway at the expiration of four years from the time it was so laid out, except such parts thereof as shall hhve been opened and worked within such time; ” and sec. 1294a provides that “any highway which shall have been or may hereafter be entirely abandoned as a route of travel, and on which no highway tax has been expended for five years, shall be considered legally discontinued, and the land "of such highway shall revert to the owners of the land through which the same passed.” Sec. 1296 provides that “ when any highway shall be discontinued, the same shall belong to the owner or owners of the adjoining lands.” Sec. 1294 is a part of ch. 52, and sec. 1347 in that chapter, declares that “ the provisions of this chapter shall extend to all parts of the state, except when special provisions inconsistent therewith shall have been made by law in relation to particular counties, towns, cities, or villages.” It is contended that, inasmuch as there is no provision of the city charter inconsistent with sec. Í294, therefore that section applies to the case, and that Henry street, within the limits specified, has ceased to be a public street of the city, and that the city has no right to open and improve it. In Reilly v. Racine, 51 Wis. 526, which arose in 1880, when sec. 1294 was in force, it was held that: “Until the time arrives when any street or part of a street is re — 457 — quired for actual public use, and when tbe public authorities may be properly called upon to open it for a public use, no-mere nonuser of any length of time will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public.”' The language of the statutes referred to shows plainly that they are not applicable to streets dedicated or granted by recorded plat, operating as a statutory conveyance. Such streets are not highways within their purview and meaning. “ The word ‘ highway5 may be construed to include any road laid out by the authority of the TTnited States, of the territory of Wisconsin, or of this state, or of any county, or town, city, or village.” R. S. sec. 4971, subd. 5. In State v. Paine Lumber Co. 84 Wis. 206, a prosecution against this plaintiff for obstructing this street under the provisions of sec. 1326, ch. 52, R. S., it was said: “ What, then, is the plain meaning of the word ‘ highway ? ’ Does it mean a strip of land which the municipality has a right to open as a highway, but which in fact has never been opened or capable of use by the public? We think the question must be answered in the negative.” It was not the purpose of sec. 1347 to make all the provisions of ch. 52 applicable to a city, irrespective of their character, although not in conflict with any provision of its charter. The adaptability of the provision and the plain indication of the language used must be regarded in construing those provisions, regard being had to the subject matter to be affected. It certainly could not have been the intention that sec. 1294 should be applicable to streets dedicated by recorded plat, instead of streets laAd out by the public authorities, so that at the expiration of five years after the recording, and when the city was increasing in population,, wealth, and importance, all parts of streets not opened, traveled, or worked should at once revert to the proprietor or his grantee, involving embarrassments and inconvenience which the legislature could — 458 — never have intended. We bold, therefore, that the statutes secs. 1294, 1294a, are inapplicable to the present case. 2. Whether the present is a case to which a court of equity should apply the doctrine of estoppel inpais, and hold, under the special circumstances, not that the street granted by the plats had reverted, but that the city, as representing the public, is concluded from now opening the street for public use after what has transpired, is a question of no little difficulty and importance. A period of nearly twenty years had elapsed after the latest replat, during which great changes had taken place and important interests grown up; and it is evident that to permit the street to be now opened will cause great inconvenience and damage to the plaintiff, which may well be regarded as irreparable. ' Henry street, from High street to Pearl street, and so to the Fox river, a short distance on the west, was low, wet, swampy land, and could only be made available for street or other purposes by considerable expenditure in filling it up; and the plaintiff and its grantors occupied the land as part of their extensive lumber yards adjacent to the mills. West Algoma street and James street on the north and south were near to and parallel with Henry street, and it seems that there is no real necessity for now opening the latter street. It was first platted in 1859. Application was made to the city council to open it from High street to Fox river, and after various proceedings the council, about a year thereafter, — November 5, 1814,— refused to do so, declaring that “it was best to let the parties interested determine the matter; ” and this ivas practically a declaration on the part of the council that it would not interfere in the premises. Afterwards the plaintiff -and its grantors, with the knowledge of this action and relying on it, proceeded to' improve their property included within the bounds of the street by filling up the low and swampy grounds at considerable expense, and erected for the purpose of their business divers buildings in and — 459 — upon the same, all of which, was done openly and to the knowledge of the city officers and, so far as appears, without objection or ¡protest. After a lapse of seventeen years, when the part of the street in question appears to have become a seat of important industries, and of no material importance to the public, the city authorities have taken measures to open it. It is material to note that this is not a case of mere nonuser of a public street. The declaration of the common council has the force, and effect of an affirmative act, upon the faith of which the plaintiff and -its grantors might well regulate their conduct in respect to their rights .as abutting owners and owners of the 'fee subject to the alleged easement, and they acted accordingly, with the result already stated. It was contended that the city was not estopped under the circumstances from opening the street; that the city officers could not alienate the public rights; and that neither neglect nor positive acts of disclaimer in pans would lay the foundation for an equitable estoppel against the rights of the public, and very many authorities were cited to that effect. The city authorities have charge of and represent the rights of the public in and to the public streets, and it has been held, and we think with great reason, that under circumstances such as are presented the city and its officers will be held bound by an estoppel in pais, to prevent injustice, from insisting upon and exercising as against the present plaintiff the rights acquired by the recorded plats. This principle was recognized and applied in Goodrich v. Milwaukee, 24 Wis. 436, 437; and in Reilly v. Racine, 51 Wis. 530, it was held that negligence and unreasonable delay in opening a street might work an abandonment of it by nonuser, and it was said that “ the questions of public necessity, negligence, and delay in any given case are questions of fact to be determined on evidence.” Were it otherwise, the conduct and acquiescence of the city and its officers would have all the — 460 — effect of a fraud as against -the plaintiff, and upon well-established principles these questions are open to proof in an equitable action to enforce such an estoppel. In .Dillon, Mun. Corp. sec. 675, after adverting to the state of the authorities on this subject, it is said that, while the “ corporation does not own and cannot alienate the public streets or places, and no mere laches on its part or on the part of its officers can defeat the right of the public thereto; yet there may grow 'up, in consequence, private rights of more persuasive force in the particular case than those of the public; ” that “ it will perhaps be found that cases sometimes arise of such a character that justice requires that an equitable es-toppel should be asserted even against the public; ” and that “ there is no danger in recognizing the principle of an estop-pel in pans as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon ail the circumstances of the case to hold the public estopped or not, as right and justice may require.” This view is a reasonable and conservative one, and calculated to properly protect the rights of the public as well as the individual, and it is in harmony with what has already been held in this state, and has been adopted by the courts of other states in recent cases. Chicago, R. I. & P. R. Co. v. Joliet, 79 Ill. 26; Lee v. Mound Station, 118 Ill. 316; Chicago & N. W. R. Co. v. People ex rel. Elgin, 91 Ill. 254, 255; Simplot v. Dubugue, 49 Iowa, 630; Bell v. Burlington, 68 Iowa, 296; Sanderson v. Cerro Gordo Co. 80 Iowa, 89; Cheek v. Aurora, 92 Ind. 114. We find no difficulty in holding that the facts of this case bring it within this rule. The evidence is made a part of the record by the defendant, and shows the facts more in detail than the finding, and is un-contradicted. Upon the entire record the judgment is correct. By the Court.— The judgment of the circuit court is affirmed.