Valentine Blatz Brewing Co. v. City of Milwaukee

Winslow, O. J. We are of opinion that the trial court was clearly wrong in holding that the Pereles Gase was decisive of this. The Pereles Gase was an ejectment action, and the question at issue was as to the location of water lots 42 and 43. The trial court held from an inspection of the original plat that the lines of the lots were correctly marked on the city engineer’s plat of 1876, and directed a verdict for the plaintiff. Upon appeal to this court it was held that this direction was erroneous, because the survey in question was valueless, not being based on original monuments and long occupation referable to original monuments which have disappeared and ignoring distances marked plainly upon the original plat; so the judgment was reversed and the cause sent back for a new trial. This court in that case did not decide where the lines of lots 42 and 43 were in fact located, but simply held that the evidence presented conflicting inferences which the court could not properly withdraw from the jury. In the present case the plaintiff does not base its case upon the correctness of the survey and plat of 187 6, but upon the fact that for more than forty years the city and the public used a tract of ground about ninety-six feet in width as and for Marshall street, which tract corresponds with the location claimed by the plaintiff as the proper location; also that for more than thirty years the city made all its improvements on Marshall street and on North Water street on the basis that the actual location of the street as so existing was the correct [244] location, levied and collected special assessments upon the plaintiffs lot upon the basis that it had a frontage of 65.52 feet instead of 50 feet, which frontage it could not have except upon the basis that the actual location of Marshall street on the ground was correct, and finally through its building department explicitly authorized the plaintiff to build its building upon that basis. On these facts, following well established principles, the city cannot now claim another location for the street. Under the decisions in Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108, and Reuter v. Lawe, 94 Wis. 300, 68 N. W. 955, it would seem that the city is now equitably estopped from insisting on any different location for the street. But if there were any doubt about this proposition it is quite clear that a case of abandonment by the public was fully, shown. Where a highway is laid out, whether by the city or by plat and dedication, and the city for more than twenty years opens and uses a strip' of land of the same width as and for such highway, which strip by mistake does not exactly coincide with the lines of the. laid-out way, the city acquires the right to use that particular strip' for its highway, and thereby abandons those portions of the laid-out way not included within the strip actually used. State v. Lloyd, 133 Wis. 468, 113 N. W. 964. It follows that the judgment must be reversed, and the action remanded with directions to enter judgment for the plaintiff according to the prayer of the complaint. By the Gourt. — It is so ordered.