Bright v. City of Superior

Tbe following opinion was filed March 6, 1916: WiNsnow, C. J.- It is conceded that tbe resolution of vacation was void at tbe time of tbe passage because of tbe entire lack of tbe petition and tbe notice to property owners which are required by tbe statute. Secs. 927, 904-, Stats. 1913. This renders it unnecessary to consider any of tbe other grounds upon which tbe validity of tbe resolution and tbe agreement which preceded tbe resolution are challenged. Tbe resolution being void when passed, its execution can, of course, be enjoined by a court of equity at tbe suit of one who, under established legal principles, suffers thereby an injury for which there is no adequate remedy at law and who seasonably brings bis action. Tbe conclusion which we reach on tbe merits of tbe plaintiff’s claim renders unnecessary any decision as to tbe validity or applicability to the present litigation of tbe validating act referred to in tbe statement of facts, viz. cb. 450 of tbe Laws of 1913, and we make no comment upon it. — 11 — Tbe vital question in tbe present case is wbetber tbe plaintiff bas shown bimself to be sncb a person as is last above described. This question is answered by tbe appellants in tbe negative because they say (1) tbe submerged lands attempted to be platted were and are a part of tbe bed of Lake Superior and bence were not tbe subject of private ownership or platting, and consequently tbe supposed streets do not exist and tbe plaintiff bas no lots; (2) in any event tbe plat was not executed in accordance with tbe requirements of tbe statute and bence did not operate as a dedication of tbe streets marked thereon to public use; and (3) tbe plaintiff bas not shown bimself to be injured but rather benefited by tbe vacation of tbe streets in question. These propositions will be discussed in their order. 1. Was tbe submerged land platted a part of the bed of Lake Superior, or of tbe St. Louis river ? Tbe circuit judge, who gave this case tbe most careful and painstaking consideration, concluded (contrary to bis first impressions) that it was a part of St. Louis river, and we fully agree with bis conclusion. Tbe fact that tbe plaintiff’s lots “are covered by tbe waters of St. Louis river” was affirmatively alleged in tbe answer of tbe railroad companies, while in tbe answer of tbe city it is said that tbe plaintiff’s lots “were platted on tbe navigable waters of tbe Bay of Superior or St. Louis river.” However, tbe question seems to have been treated as an open one in tbe trial court and it seems better that it should be so treated here. Tbe question is wbetber that body ,of water about seven miles long and from three quarters of a mile to a mile in width, commonly known as Superior Bay, which lies along tbe northeast front of tbe city of Superior, is a widening of St. Louis river, or an arm of Lake Superior. Tbe situation will be better understood by referring to a map of tbe westerly end of Lake Superior. It will be seen that there juts out from tbe extreme west end of tbe lake, immediately in front of tbe city of Duluth on tbe Minnesota shore, a long — 12 — and narrow tongue of land seven miles or more in length, in a southeasterly direction, forming the northeast boundary of the so-called Superior Bay. Another tongue of land extends in a northwesterly direction from the Wisconsin shore, and these two tongues of land are known respectively as Minnesota Point and Wisconsin Point. Their ends are separated by a 500-foot channel locally known as 'the Superior entry. This channel is and has always been recognized as the mouth of the St. Louis river, and through it (though now deepened and enlarged by dredging) the waters of that river have always been discharged into Lake Superior. The proof is plenary and convincing that this channel has been recognized by the national and state governments and by the people generally as the mouth of the St. Louis river from a'very early period. In the map made by J. N. Nicollet (which is part of a report covering explorations and hydrographical surveys made under the authority of the United States War Department in the years 1836 to 1839, published in 1843 as part of Senate Document No. 237, second session of the 26th Congress) the body of water in question is plainly represented as a part of the river and the words “Fond du Lac Superior” (bottom or farthest part of Lake Superior) appear just outside of the above described channel or entrance, printed upon the space representing the body of the lake. Following this comes the direct governmental recognition and adoption of this map in the Wisconsin enabling act of 1846. In this act the boundaries of the proposed state are specifically traced and at this point are given as follows: “thence through the center of Lake Superior to the mouth of the St. Louis river; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet’s map.” The same boundary line is given in the constitution of Wisconsin (art. II, sec. 1), and the enabling act for Minnesota, passed in 1859, recognizes and adopts the same line. The government survey was made in 1853, and the field-notes — 13 — sbow that the aforesaid channel between Minnesota and Wisconsin Points was recognized by the surveyors in fixing their meander lines as the mouth of the St. Louis river. A lithographed map of the new city, published in 1856 by the proprietors of the plat, while designating the body of water as the Bay of Superior, hears also the words “St. Louis river” printed upon a part of the center portion of the so-called bay where the channel would naturally be. In a chart of Lake Superior published by the United States War Department in 1870 the mouth of the aforesaid channel is designated as the mouth of the St. Louis river. It is true that the body of water in question is frequently called the Bay of Superior both on maps and in public speech, but we regard this as very natural and entirely inconclusive. As matter of fact there always was a.channel in the central part of this so-called bay through which the waters of the river always moved towards the lake; that the river is continuous from its source to its entrance into Lake Superior through the channel aforesaid and has always been so considered, seems to our minds well proven. It follows from this that the bed was the subject of private ownership and that the riparian proprietors could separate the ownership of the lands on the bank from the lands in the bed by conveyances. Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606; Kelley v. Salvas, 146 Wis. 543, 131 N. W. 436, and cases cited. 2. This brings -us to the question of the execution of the plat and its validity as a statutory dedication. The statute (secs. 1 — 5, eh. 41, R. S. 1849) required that the same should be certified by the surveyor and' acknowledged by the proprietor and recorded, and should then operate to vest the land intended for streets, alleys, ways, commons, or other public uses in the city or town in trust for the uses and purposes set forth and expressed or intended. It is undisputed that this plat was not signed or acknowledged by the proprietors (W. W. Corcoran and others), but by the former owner, one — 14 — Becker. Tbe surveyor’s certificate recites tbat tbe plat was made and designed under tbe direction of William H. Newton “as agent of tbe proprietors/’ and it is indorsed as approved by “William H. Newton, agent of tbe proprietors.” It appears tbat on April 12, 1855, there was recorded in tbe office of tbe register of deeds a duly acknowledged power of attorney from Mr. Oorcoran and bis fellow proprietors, running to William IT. Newton and R. R. Nelson, authorizing them, among other things, to cause certain lands owned by tbe proprietors, including tbe lands in thé plat in question, to be surveyed for tbe purpose of making division of tbe same among tbe owners, to make partition thereof among such owners, and to convey tbe same in parcels to tbe several owners. In this power of attorney all tbe lands owned in common by tbe parties, including tbe platted lands, are described, and it is stated upon part thereof “tbe town of Superior has been laid out, surveyed, and tbe plat thereof recorded in tbe office of the register of deeds of said county of Douglas under our direction and authority.” It cannot be doubted tbat tbe proprietors, by duly executed power of attorney, could have authorized Becker and Newton to make acknowledgment t and record tbe plat. Nelson v. Madison, 3 Biss. 244; Bushnell v. Scott, 21 Wis. 451. It is a familiar rule tbat what may be authorized in advance may be subsequently ratified, provided tbe ratification be of tbe same nature and executed with like formality as tbat required for conferring authority in tbe first instance. 2 Corp. Jur. p. 485, sec. 103; 1 Mecbem, Agency (2d ed.) secs. 419, 420. We see no escape from tbe conclusion tbat there is here a complete ratification of the previously unauthorized plat. Newton and Becker had attempted to make and record a valid plat as agents of tbe proprietors, and tbe proprietors by a duly executed, acknowledged, and recorded instrument after-wards certify to tbe world tbat tbe land was surveyed and tbe plat recorded under their direction and authority. It is diffi — 15 — cult to see wbat further could have been done to make a good ratification. This conclusion renders unnecessary any consideration of tbe question whether the defendants are in any position to raise this objection, a matter about which there may be some doubt arising from the fact that the existence of the streets has been recognized by both the railroad companies and the city in the most unequivocal manner through all the litigation from the time the city commenced its action against the railroad companies in 1910 down to the present time. Indeed, if the streets do not exist and never have existed, the elaborate agreement entered into between the city and the railroads as well as the subsequent vacation proceedings would seem to be the veriest nonsense. Ashland v. C. & N. W. R. Co. 105 Wis. 398, 401, 80 N. W. 1101. Nor is it necessary to consider the effect of the various general validation acts passed for the purpose of curing the defects existing in ancient plats and obviating the serious results to innocent purchasers which might follow from a decision holding such plats to have been defectively executed in the first instance. Secs. 1299;', 12997c, and 2216b, Stats. We entertain no doubt that the plat must now be considered as a valid statutory plat. 3. Has the plaintiff shown himself entitled to relief in equity? This is perhaps the most serious question in the case. We pass the contention made by the appellants that the plaintiff is not a purchaser in good faith; he will be treated as such. The situation then is substantially this: he owns two adjoining lots, each 25 by 120 feet in extent, on a sand-bar several hundred feet -from shore, sifrrounded by water on every side; whether riparian rights go with the lots is an unsettled and doubtful question; they are not now and never have been used; there is not now and never has been any access to them by land; they have lain there for sixty years, most of the time quietly sleeping at the bottom of the river, but finally elevated to the light of day by the kindly as — 16 — sistance of the United States government as an incident to the making of a channel for navigation; no public authorities have ever improved or thought of improving the mythical streets and alleys marked on the map which are formally vacated by the resolution in question; to improve them would mean also the filling in of the lots and blocks between and would involve great expense; so far as appears another sixty years would probably pass before the municipal authorities would feel justified in undertaking such a task; neither the public nor the plaintiff have ever had any way of access to the lots except by small boats nor have they apparently desired any other method of access; it does not appear that the plaintiff has any use for the lots, and, if he had, the vacation of the so-called streets does not affect the prospect of future access to them in any way. The overwhelming weight of the evidence taken on the subject is to the effect that the vacation of the streets and alleys in the submerged part of the plat did not substantially affect the market value (so far as there can be a market value) of the lots. The reasons for this opinion are apparent and easily understood. The city stands at the head of probably the greatest inland waterway in the world, the gateway between the water system of the Atlantic and the railroad systems of the Pacific; its future, if it has a future, must be commercial.and industrial, and it must necessarily depend in a very large degree upon the utilization of this wonderful landlocked water front. Transportation and manufacturing interests of the present day demand large unobstructed areas for their development; the day of the small enterprise of this nature is gone, probably never to-return. If this water front is to be utilized, the existing subdivisions into small lots and blocks with frequent streets must disappear in one way or another. Hence the witnesses are quite unanimous in concluding that, if there be any change in the value of the plaintiff’s lots resulting from the vacation proceedings, it is more likely — 17 — to be an increase ratber than a decrease, and we see no reason to doubt tbe correctness of tbeir conclusion. On this general subject tbe trial judge in bis written opinion very aptly says: “Eor tbe sixty-one years that have elapsed since the platting no use whatever has been made of the plaintiff’s premises; no income has been derived therefrom and there is no intimation that'any use of them is intended. In fact it is clear that unless combined with other lots so as to form a large compact tract they are valueless for any commercial purpose. Each of tbe two lots is twenty-five feet in width and they might be utilized for the site of a small boathouse, and if the scheme of the compromise agreement between the city and the railroad companies could be carried out the lots could probably be sold for more than they are now worth to be incorporated into a large tract suitable for dock and warehouse purposes.” No fair-minded person can carefully read the testimony and come to any other conclusion, as it seems to us. So we meet the question whether an enterprise involving a great public benefit both to the municipality and the people of an important city should be halted and killed by the courts at the suit of an individual citizen whose abstract rights have been infringed upon, but who will either suffer no injury or whose injury will be inconsequential and conjectural. This question has been met by numerous courts including our own and has been universally answered in the negative. In Mahler v. Brumder, 92 Wis. 477 (66 N. W. 502), at page 486 it was said: “Equity should not be successfully invoked merely to inflict injury or damage to the defendant, without securing any substantial right or benefit to the plaintiffand in the recent case of Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 154 N. W. 998, it is said: “The present or threatened injury must be real and not trifling, transient, or temporary. . . . Courts generally exercise their discretion against issuing an injunction, where it will produce great public or private mischief, merely to protect technical, doubtful, or unsubstantiál rights,” citing many cases from other — 18 — jurisdictions. See, also, Schuster v. Milwaukee E. R. & L. Co. 142 Wis. 578, 126 N. W. 26. This doctrine seems to us eminently sane and sensible. It seems that it is not always remembered that courts are instituted and maintained not for the purpose of delicately poising the scales of abstract logic and recording results, but rather of aiding in the attainment of the ends of government by vindicating rights that are real. Especially is this true of a court of equity. In a case like the present its function is unquestionably to prevent a substantial wrong to the citizen, not to use its high powers to prevent an act which merely infringes upon an abstract or theoretical right but causes no substantial injury to any one; and in this latter situation the court, it seems, may well consider as controlling the fact (if it be a fact) that the threatened act will result in a substantial benefit to the municipality and its people generally. In the present case the evidence seems to us to demonstrate that the plaintiff’s injury is academic rather than real, or at most so insignificant in its character that no injunctive relief should be granted. While we have had no difficulty in reaching this conclusion on the evidence before us it has not been entirely clear to us what form the judgment should take. If there be even slight damages they ought to be assessed either in the present action or in an action at law brought for that purpose after the dismissal of the present action. There has already been one long.and expensive trial of this case; manifestly it would be desirable for both parties if the whole matter could be now closed and the necessity of another trial of the present action or the bringing of a new action obviated. We are of opinion that under the circumstances present in this case this may well be done. The defendants have in effect stipulated and agreed to pay any damages found to exist by the trial court. Their answers contained a formal offer and consent that the damages might — 19 — be determined in tbe present action either by tbe court or by a jury at tbe plaintiff’s election, and further, “these defendants hereby agree that this answer may stand as an agreement on the part of these answering defendants 'to pay such damages if any when they shall be so fixed and determined, and hereby offer and agree to assure the payment of such damages to be so fixed and determined by undertaking or deposit with the court, in such amount and in such manner as may be ordered by the court upon motion of the plaintiff.” No undertaking or deposit was in fact made, and the court at the close of the case agreed with the plaintiff that he was entitled to equitable relief instead of money damages. Strictly speaking, the plaintiff doubtless exercised his election and refused the offer, yet the offer has never been withdrawn and still remains in the pleadings. The trial judge in his written opinion considered it his duty to make.findings as to the damages and concluded as follows: “But assuming that he has rights beyond the limits of his lot lines, the utmost value that can be put upon them is $750 apiece, and it is my judgment, from all the evidence, that a liberal allowance for damages in case the vacation proceedings are ultimately sustained is one third of the value of the lots.” It will be noticed that this allowance is based on the assumption that the lots extend to the harbor line, an assumption about which there may be much doubt. While this was evidently considered a finding of fact by the trial judge, it was for some reason not inserted in the formal findings of fact. Doubtless, under the offers contained in the answers the plaintiff might have accepted this sum and entered judgment upon it. He chose not to do so, however, and accepted the equitable relief awarded by the court. He is now held on defendants’ appeal not to have been entitled to this equitable relief. While it is true that an election of remedies once made is ordinarily final, we think it entirely within the power of — 20 — this court, in view of the fact that the offers hare never been revoked or withdrawn, to utilize and act upon them now in order to shape a final decree which shall avoid the necessity of further litigation. No harm can be done to the plaintiff by this course, for he will obtain more damages than he has in fact suffered; no harm will be done to the defendants, for they have consented thereto in advance; further litigation and expenditure of money will be avoided and equitable principles will be in every true sense observed and enforced. The judgment will be that the judgment of the trial court be reversed, and the action remanded with directions to enter judgment awarding the plaintiff a recovery of $500 against the defendants, and in all other respects dismissing the complaint on the merits without costs to either party. But one bill of costs to be taxed'by the appellants in this court. By the Court. — It is so ordered. ViNJB, J., took no part.