Arnold v. Volkman

WiNSlow, J. In the present case it appears that the piece-of land in question was dedicated to the public use as a street by the then owner thereof in the year 1870, and that it was-accepted by the public and continuously used as a street until the year 1880; the plaintiffs, in 1879, having acquired' title to the parcel of land immediately adjoining the street on the south, and thereby having become owners of the south half of the street (being the parcel in dispute), subject to the-public easement thereon for street purposes. It further appears thgt the public ceased to use the premises for travel in. 1880, because the bridge across the river had been swept, away, and, when rebuilt, was approached from another street,, and that in 1887 or 1888 a public sewer was constructed through the parcel, which has ever since been maintained;, that in 1894 the plaintiffs conveyed to the defendant the piece of land which they bought in 1879, by a description which,, though erroneous in its calls, sufficiently described the parcel-as that part of block 19 “lying immediately south of where-the old bridge entered Eerry street, and extends 75 feet along' the easterly side of said First avenue.” ’ The defendant immediately went into possession of the parcel so sold, and has remained in possession thereof, together with the south half of the alleged street, ever since. It is entirely clear that if the strip in question was still a part of the public street in 1894, when the plaintiffs so deeded to the defendant, then the defendant acquired title thereto by that deed, subject only to the public easement, and that thereafter neither the abandonment by the city nor conveyance by the city could vest title in the plaintiffs. [60] In tie view we Rave taken of the case we find tRis tRe only •question necessary to be considered, namely, was tRe land in question a part of tRe public street in 1894 ? At that time it Rad not been used as a street for travel for nearly fourteen years. In 1884 the city Rad accepted a deed from the original proprietors in which it was described as a strip of land “formerly occupied as a street,” and in 1887 the city had con■structed a public sewer through the strip, and filled it in, and maintained the sewer ever since that time. TRis court has uniformly taken advanced ground in favor of the pub-' lie on the question of the loss of rights in public streets by nonuser or abandonment. TRe cases are numerous, and it is unnecessary to consider them in detail. Their effect is to hold that municipal corporations cannot sell the streets, nor will mere laches or nonuser on the part of the authorities or the public suffice to defeat public rights, but that cases may arise where private rights and interests have grown np, founded upon the nonaction or action, as the case may be, of the public, so that the prevention of injustice will require the application of the well-understood principles of estoppel as against the public right. Trester v. Sheboygan, 87 Wis. 496, 58 N. W. 747; Reilly v. Racine, 51 Wis. 526, 530, 8 N. W. 417; Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 M. W. 1108; Reuter v. Lawe, 94 Wis. 300, 68 N. W. 955; Ashland v. C. & N. W. R. Co. 105 Wis. 398, 80 N. W. 1101; Davis v. Appleton, 109 Wis. 580, 85 N. W. 515. Applying this principle to the present case, we find nothing •amounting to an estoppel in pais in the year 1894 or prior 'thereto. The most that can be said is that there was nonuse of the strip by the public for street purposes for nearly fourteen years, and that the public in 1884 accepted a deed of the strip from the original proprietor. The plaintiffs did not act, and paid out no money in reliance upon any act or refusal to act on the part of the city. Their position had not, in 1894, been changed or influenced in the least. The conclu [61] sion necessarily is that tbe public rights were unimpaired in. 1894, and that tbe defendant then acquired title to tbe strip-in dispute, subject to tbe public rights. Whether those public-rights have been lost by abandonment and estoppel since that' time is immaterial, and was not determined in the trial court,, nor will any attempt be made to determine the question here. Any abandonment since that time would not inure to the-plaintiffs, and the city could not deed away the public streets.. By the Oourt. — Judgment affirmed.