Emmons v. City of Milwaukee , 32 Wis. 434 ( 1873 )

LyON, J.

I. The right of appeal to the circuit court from the award and determination of the board of public works, in this and like cases, is given by sections 3 and 5 of ch. 141, P. and L. Laws of 1868, which are as follows:

“ Sec. 3. In all respects, except as to petition and bond aforesaid, the proceedings in regard to said park or public grounds shall be the same as required by said chapter [ch. 141, Laws of 1852], and the several acts amendatory thereof, in buying, laying out, opening or widening streets ; with the same' right of appeal to the circuit court from assessments of damages and benefits as is given in like cases for the damages and benefits in opening and widening streets.

“ Sec. 5. In estimating the damages to be awarded to any person or persons for property taken, any right which the city has, or may have at the date of such estimate, in such property, through grant, dedication or otherwise, shall be taken into consideration, and if such right claimed by the city is denied by parties in interest, it may, by appeal to the circuit court by either of the parties entitled to an appeal, be tried as one of the issues involved in the appeal and without further pleadings.”

By the provisions of the city charter referred to in section 8, it will be seen that any person whose property has been taken for the proposed park may appeal to the circuit court from the assessment of damages or benefits.

These sections are in pari materia, and must be construed together ; and, upon a careful consideration of them, I am satisfied that they give the right of appeal not only from.the assessment of damages and benefits, but also where, as in this case, no such assessment has been made because the property is held by the board of public works to be public property. But section 5 does not, in my opinion, give an independent appeal to try the question of title alone, but only permits that issue to be tried with the question of damages or benefits. Such seems to be the significance of the provision which authorizes the right to the property to be tried “ as one of the issues involved in the appeal.” This construction of the statute enables the court, in one proceeding, fully to adjudicate the rights and liabilities of the parties resulting from the condemnation of the property to the public use, and thus avoids circuity of action with the attendant delay and expense. It is not difficult to believe that, by the act of 1868, the legislature intended to accomplish these most desirable objects.

If the above views are correct, it necessarily follows that the judgment of tbe circuit court is erroneous. If tbe respondents can establish their right to damages, there should be an assessment thereof on their appeal to the circuit court; and, instead of an injunction, they should have judgment for the damages so assessed, against the city.

II. On the question of dedication a few remarks must suffice. We do not think that the plat made and recorded in 1837 by Martin and Juneau operates as a dedication or grant of the locus in quo to the public use. W e fail to find in that plat, or in the accompanying notes or certificates, any evidence of an intent by the proprietors to make such dedication or grant. It was held in Gardiner v. Tisdale, 2 Wis., 153, that in order to transfer the title to lands from the proprietor of a town site, and to secure such lands to the public use, by virtue of the plat thereof, a compliance with the requirements of the statute in that behalf is just as essential to divest the proprietor of his title, as it would be in a deed of conveyance by one person to another. In this case the plat does not show the slightest attempt by Martin and Juneau to grant or convey the locus in quo to any public use. The words “reserved for light house,” written in the blank space along the lake shore, which includes the land in question, evidently relate only to the 50 feet square at the end of Wisconsin street marked on the plat, and have no reference whatever to the land included in the space in which they are written.

It is scarcely necessary to say that it is competent for the city to show that any owner of the locus in quo has dedicated the same to the public use by acts in pais ; and all testimony which would tend to prove such dedication should be admitted.

III. If Peck and Bradley (under whom the respondents claim title), when they were the owners of the land in question, received compensation of the city for the 80 feet strip known as Lake street, which the city attempted to condemn for a street, they and their grantees are estopped to deny that such strip is a public street. Karber v. Nellis, 22 Wis., 215. The evidence that Peck and Bradley received sncb compensation should, therefore, have been received.

IV. We are not aware of the existence of any rule of law which requires all of the tenants in common of the land condemned to join in the appeal from the award or determination of the board of public works. We see no good reason why such of them as desire to do so may not join in an appeal, without the presence or concurrence of those who are content with the award, and do not wish to disturb it.

By ike Court- — -The judgment of the circuit courtis reversed, and a venire de novo awarded.