Klinkert v. City of Racine

Crownhart, J. (1) In making the surveys and plats and causing the same to be recorded in the office of the register of deeds of Racine county, Herrick seems to have complied with all the requirements of ch. 47 of the Laws of 1858, then in force. 1 Taylor’s Revised Statutes, ch. 47, sec. 4. Neither these statutes nor the charter of the city of Racine contains any requirement of acceptance of the plat. Under the common law no acceptance is required. It is sufficient, both under the common law and under the statutes cited, that the city make use of the streets and alleys dedicated, or improve the same, or accept the plat for the purpose of taxation. Smith v. Beloit, 122 Wis. 396, 100 N. W. 877. Counsel for respondents cite Mahler v. Brumder, 92 Wis. 477, 66 N. W. 502, to the point that acceptance by the city of a plat was necessary. There the plat was offered to the [204] city council for acceptance and affirmatively refused. The case goes no further than to hold that there must be an acceptance “or a user which is equivalent to such acceptance.” In the case at bar there was a plat filed in accordance with law, and thereafter the plat was used for taxation purposes, and some of the streets were used and some improved. We hold that the plat was sufficient and that the same was duly accepted. (2) The placing of buildings or other obstructions upon an alley of the city constitutes an obstruction and a public nuisance. This wrong on the part of the obstructor will not ripen into a right unless the city by its conduct shall become estopped from asserting its right. It must be understood that the alley does not belong to the city in its proprietary capacity, but that it is held in trust for the public. The city may not waive the public’s rights except in pursuance of law. There was no such waiver or surrender in this case. (3 ) The acceptance of a plat by the city does not require that it shall open all the streets and alleys for immediate use, and failure to use or occupy the same until the necessity arises does not abandon the public right. (4) Adverse possession will not run against the city. Adverse possession ripens into a property right because of the presumption of a grant after the lapse of the statutory time. The city has no right to grant the streets and alleys for private use, and what the city has no right to grant cannot be obtained indirectly by any presumption of a grant. (5) The common council is the judge of the public necessity for opening up its streets and alleys and as to whether any public convenience or use will be subserved thereby. (6) The plaintiffs in this case had no equitable standing in court. They purchased their property according to the plat. They knew, or ought to have known, the boundaries of their lots. The conveyances to them fully apprised them of the extent and boundaries of their property. They cannot [205] now claim title to their property under the plat and at the same time deny the legality of the plat. The value of the improvement is little, and the removal of the shed a distance of eight feet will cause little hardship. (7) The city is not barred from asserting its rights by estoppel. The city has not taken any affirmative action to indicate any abandonment of its rights. It has been guilty of no laches which has misled the plaintiffs to their damage. The rights of the city in its duly platted streets and alleys will not be deemed surrendered by estoppel in pais without such acts by the city as to work injustice and hardship upon those parties relying upon the inequitable conduct of the city. Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108; Superior v. Northwestern Fuel Co. 164 Wis. 631, 161 N. W. 9. The rule of equitable estoppel laid down by Dillon on Municipal Corporations is adopted by this court in the latter case and is as follows: . “While the [municipal] '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.’ ... ‘It will perhaps be found that cases sometimes arise of such a character that justice requires that an equitable estoppel should be asserted even against the public.’ . . . ‘There is no danger in recognizing the principle of an estoppel in pais as applicable to exceptional cases, as this leaves the courts to decide the question, not by the mere lapse of time, but 'upon all the circumstances of the case to hold the public estopped or not, as right and justice may require.’ ” To this rule the court added: “In order that an estoppel in pais may arise there must be (1) inequitable conduct on the part of the city, and (2) irreparable injury to parties honestly and in good faith acting in reliance thereon.” Superior v. Northwestern Fuel Co. 164 Wis. 631, at p. 641, 161 N. W. 9. [206] In Arnold v. Volkman, 123 Wis. 54, 101 N. W. 158, this court, by Mr. Justice Winslow, said: “This court has uniformly taken advanced ground in favor of the public on the question of the loss of rights in public streets by nonuser or abandonment. The 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 up, 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.” The foregoing correctly states the position of this court. It follows that the judgments of the circuit court must be reversed. By the Court. — Judgments reversed, and the causes remanded with directions to dismiss the complaints.