Knox v. Roehl

Vinje, J. It is conceded by the defendants that if the ten-foot strip in question was a part of the street at the time [243] the sewer aucl water-main assessments were made and levied, then the taxes for which their property was sold are valid, and plaintiff is entitled to maintain the action. But they claim the facts show the city never acquired the strip for street purposes, and that there has never been either a statutory or common-law dedication of the same for such purposes. They further contend that no reference can be had to the condemnation proceedings of 1900 for the purpose of ascertaining the intent of the city in acquiring the strip, since the judgment declaring such proceedings void invalidated them not only so far as it affected any action based thereon but for all purposes, so that no resort can be had to them for the purpose of gathering the intent of the city in commencing them. This claim strains the effectiveness of a judgment of this court to the breaking point. The proceedings may still be resorted to for the purpose of showing the intent of the city in acquiring the strip. That intent was unmistakably to make it a part of Island avenue. It is also claimed that no reference can be had to acts of the city relating to the strip since the assessments in question were made; that whether or not the strip was then a part of the street must be determined upon the facts as they then existed. This in a sense is true. Yet, when a question of intent is to be determined, subsequent ■acts and declarations are relevant because they throw light upon the prior acts and declarations, especially where they have consistently been the same. It will be conceded that there has been no statutory dedication of the strip for street purposes, and that a city cannot directly buy land for a street. Trester v. Sheboygan, 87 Wis. 496, 58 N. W. 747. But a city may dedicate for street purposes land which it owns. The essential requisites of a valid common-law dedication are that there must be an intent to dedicate on the part of the owner and an acceptance of the dedication by the proper public authorities or by general public user. 1 Elliott, Roads & Streets (3d ed.) § 122; Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819. Has the city dedi [244] cated this ten-foot strip for street purposes? Since the city by a dedication of its own land must not only dedicate but also accept the dedication, the questions of intent and acceptance merge more or less into each other. If, therefore, a clear intent to dedicate can be gathered, only slight proof of acceptance need be shown, for it will be presumed that the city intends to accept in behalf of the public its own dedication. As bearing upon the intent to dedicate the following facts are significant: In 1900 the city began condemnation proceedings for the purpose of widening the street and sought to acquire not only this ten-foot strip but also twenty feet more to tiie east thereof, thus showing an unmistakable intention to make Island avenue sixty feet in width. Subsequent to 'the beginning of the condemnation proceedings it paid Wal-worth, the owner of the strip, $800 for the same, and thereafter the strip was noted to be a part of the street on the official street atlas kept in the city engineer’s office. Thereafter tax certificates on defendants’ land described the same as bounded on the west by Island avenue. In 1911 the city again began condemnation proceedings to acquire the west twenty feet of the defendants’ land for the purpose of widening Island avenue, and in this proceeding the strip in question was treated as a part of the avenue in the resolution of the common council and map accompanying the same.. In this resolution the defendants’ land is described as bounded on the west by Island avenue. It would seem from these proceedings that the city unmistakably by these several acts declared its intention to make this ten-foot strip a part of the street. The fact that the traveled track thereof still remained on the original- thirty-foot street and that the ten-foot strip was more or less overgrown with weeds and grass is quite immaterial. It is the intention to dedicate that governs, and it has been held that the recognition of -a street on an official map alone is sufficient evidence of acceptance. Steele v. [245] Sullivan, 70 Ala. 589; Schade v. Albany, 16 N. Y. Supp. 262; 1 Elliott, Roads & Streets (3d ed.) § 169. It seems clear, therefore, that the court erred in finding that the ten-foot strip was not a part of Island avenue at the time the assessments in question were made. We have come to this conclusion not unmindful of the rule that a finding of the trial court should not be set aside unless it is against the clear preponderance of the evidence. In this case, however, the finding is more in the nature of a conclusion of law than of fact. It is the result of inferences drawn from practically undisputed facts. By the Cowrt. — Judgment reversed, and cause remanded for further proceedings according to law.