City of Racine v. Crotsenberg , 61 Wis. 481 ( 1884 )

LyoN, J.

In Kimball v. Kenosha, 4 Wis. 321, it was set- • tied that in this state a grantee of a lot bounded by a street in a village or city, laid out, platted, and recorded in con-, formit-y with the statute, takes to the center of the street on which the lot abuts, subject to the public easement. The fee of the street is in the abutting owner, and the interest of the public therein, which the city or village holds in trust for it, is not a fee, but a mere easement. Goodall v. Milwaukee, 5 Wis. 32; Milwaukee v. Mil. & B. R. R. Co. 7 Wis. 85; Ford v. C. & N. W. R. R. Co. 14 Wis. 609.

In Gardiner v. Tisdale, 2 Wis. 153, and again in Weisbrod v. C. & F. W. R'y Co. 21 Wis. 602, it was held that the owner of the fee of a street might maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repugnant to. the purpose of the public easement.

The above rules have never been shaken, and "are firmly imbedded in the jurisprudence of this state. These rules are decisive of this action, for no one will contend that an action of ejectment will lie to recover a mere right of way. Such an easement is incorporeal in its nature (Washb. Easem. 3), and ejectment lies only to recover things corporeal, which may be the subjects of seizin, entry, and possession. There-can be no seizin of an incorporeal hereditament and' it cannot be the subject of entry or possession. It “ lyeth in grant, and not in livery.” Sedg. & W. Tr. Title to Land, §§ 95-98, 146, and cases cited. The plaintiff has an ample remedy under its charter. It may summarily remove obstructions to its streets, and doubtless has other remedies, but it cannot maintain ejectment.

It is not alleged in- the complaint whether Grotsenberg is the owner in fee of the premises claimed. But it is immaterial whether he is or is not such owner.-

The statute (R. S. secs. 3017, 3084) clearlyindicates the scope and limitations of the action of ejectment in this state. Sec. 3077 requires the plaintiff to state particularly the nature and extent of his estate or interest in the lands claimed, “ whether in fee, dower, for, life, or for a term of years, specifying such life or lives, or the duration of such term, and that he is entitled to the possession of such premises, and that the defendant unlawfully withholds the possession thereof from him.” Sec. 3084 requires that the verdict (if for the plaintiff) shall specify the estate established on the trial by the plaintiff, “ whether it be in fee, dower, for life, or for a term of years, specifying such life or lives, or the duration of such term.” Subd. 7.

This complaint shows affirmatively that the plaintiff is not the owner in fee, or for life, or a term of years, of the lands claimed, and also that the defendants do not withhold the possession thereof from it in the sense in which the word possession is employed in the statute.

The case was very ably argued by counsel on both sides, and numerous adjudications elsewhere were cited by them in support of their respective positions. But the uniform decisions of this court, extending over a period of more than thirty years, are conclusive of the question here determined, and it is unnecessary to comment upon those adjudications.

. By the Court.— The order of the circuit court is affirmed.