Kennedy v. Barnish

Action commenced June 6, 1942, by plaintiffs-respondents against defendants-appellants for damages caused by alleged trespass by defendants on a portion of Green street in the plat of Edgewater Beach addition to the village of Pardeeville. The defendant Krinke was hired by the village board to grade a portion of said street. The other defendants are members of the village board. The plaintiffs claim title to the land upon which the alleged trespass was committed.

Prior to June 30, 1928, Frank D. Kennedy (through whom plaintiffs claim title) caused to be platted the Edgewater Beach addition to the village of Pardeeville. The plat is certified by Mr. Kennedy as of June 30, 1928. Thereafter, he submitted the plat to the board of trustees for approval pursuant to sec. 236.05(1), Stats. 1927. The plat has the following indorsement thereon:

"Admitted to the village of Pardeeville as Edgewater Beach addition by resolution by unanimous vote of the village board in regular session, April 16, 1929.

[Signed] "H. P. THOMPSON,
"Village Clerk."

The resolution adopted by the village board is as follows:

"Resolved by the village board in regular session assembled that the plat of Edgewater Beach addition to the village of Pardeeville, Wis., presented by Frank D. Kennedy of said village to the village board for acceptance be, and the same is hereby accepted: Provided, however, that the streets, drives, courts, parks or bridges shown on said plat are not dedicated to the public, but are reserved for the sole use in common of the owners of the lots in said Edgewater Beach addition. The village of Pardeeville assumes no liability whatsoever on account of said streets, drives, courts, parks or bridges, or as to the care and maintenance of any part of the said addition."

Mr. Kennedy recorded the plat in the office of the register of deeds of Columbia county May 24, 1929, and thereafter sold and conveyed several lots in said plat, describing the land conveyed by lot and block numbers of Edgewater Beach addition. On October 7, 1941, the village board, on the petition of Robert Munchow, an owner of several lots in the addition, to open Green street, adopted the following resolution:

"Resolved that the following streets being platted in the plat of Edgewater Beach addition to the village of Pardeeville, namely, one, Green street; two, Franklin street, be and the same are hereby accepted as public streets and dedicated to the public use."

On May 26, 1942, the village board authorized the improvement of part of Green street "from its intersection with Lake street on the south, to Franklin street on the north, in the Edgewater Beach addition to the village of Pardeeville." That part of Green street mentioned in the above resolution is the premises upon which the alleged trespass occurred. Thereafter, the street committee hired defendant Krinke to grade that portion of Green street. Krinke started to grade, whereupon plaintiffs commenced this action against Krinke and the members of the village board.

The case was tried to the court, who made findings of fact and conclusions of law to the following effect: The first four findings cover in substance facts as above stated, concerning which there appears to be no dispute.

"(5) The street committee of the village subsequently notified the plaintiffs, present owners of the land who inherited the same upon the death of Frank Kennedy, that Green street would be opened up and improved, and plaintiffs' attorneys promptly notified the street committee in writing that any prior offer to dedicate the street had been revoked and that a committee would be treated as trespassers.

"(6) On May 29, 1942, upon orders received from the village street committee defendant Krinke proceeded to grade and improve said Green street, which prior to that time had not been opened up or improved by the village and which prior to that time the plaintiffs, the record owners, had continued to use as agricultural land and had prior to said time planted trees, berries and asparagus on said street. I further find that said acts of said trespassers were under the direction of defendants Kamrath and Clark and were with the knowledge and consent and full approval of each of the other defendants.

"(7) I find that the amount of damages caused by said trespass was in the sum of $75.

"(8) I further find that the plat was irregular in that it was not recorded within thirty days of its approval by the village board and in various other ways was irregular in failing to comply with the provisions of sec. 236.02 of the 1927 statutes.

"(9) I find that the defendants threatened to further trespass and were, in fact, continuing to trespass upon the lands of the plaintiffs and that the injury was substantial and irreparable in that the damages cannot be accurately measured by any certain pecuniary standard.

"(10) I further find that a continuance of the trespass would not only cause substantial and irreparable injury but in addition would cause a multiplicity of actions."

As conclusions of law the court found that there was no dedication of streets by the plat because the village refused to accept the dedication of the named streets for the public; that defendants and each of them were trespassers; that the trespass was illegal and without justification in law; that each of the defendants is jointly liable for the damages resulting from the trespass; that plaintiffs are entitled to judgment in the sum of $75, plus costs and disbursements. From a judgment accordingly entered December 14, 1942, defendants appeal. The plat of Edgewater Beach addition to Pardeeville is divided into five blocks, four of which are subdivided into lots of various sizes; and there are several streets or avenues running through the plat. Green street is sixty-six feet in width and extends from Lake street on the south to Franklin street on the north a distance of seven hundred twenty-one and five-tenths feet. It affords access to and from the lots, and connects with the streets and avenues shown on the plat.

It is clear that the plat as submitted by Mr. Kennedy to the board of trustees of the village of Pardeeville was not unconditionally accepted. The board interpreted the plat that the streets, drives, courts, etc., shown were not dedicated to the public, but were reserved for the sole use in common of the owners of the lots in Edgewater Beach addition. They further stated in the resolution of April 16, 1929, that "the village of Pardeeville assumes no liability whatsoever on account of said streets, drives, courts, parks, or bridges or as to the care and maintenance of any part of said addition." Mr. Kennedy, with knowledge of the trustees' interpretation of the plat and the condition last above quoted, recorded the plat in the office of the register of deeds of Columbia county, to which was attached the resolution of April 16, 1929, quoted in the preceding statement of facts.

Thereafter, Frank D. Kennedy and Edna Kennedy, his wife (one of the plaintiffs in the instant action), sold and conveyed to several different persons a large number of the lots, describing the land conveyed by lot and block numbers of Edgewater Beach addition. Among other purchasers was Robert Munchow who purchased eight lots in block 2. On August 15, 1941, Mr. Munchow petitioned the board of trustees to open Green street and make same available for his use. On his petition, the village board based its resolution of October 7, 1941, quoted in the preceding statement of facts.

"Dedication is defined to be the act of giving or devoting property to some proper object, in such a way as to concludethe owner." Connehan v. Ford, 9 Wis. *240, *244. The trial court, in a very carefully prepared opinion, said as follows:

"I am of the opinion, therefore, that the plat, though initially defective, was subsequently validated or better stated, perhaps, we should say that plaintiffs are now estopped to deny its validity." Citing Pettibone v. Hamilton, 40 Wis. 402.

In that case, page 414, the court said:

"It may be observed in this connection, that the plat, and the conveyance of lots by the proprietors with reference to it, constitute a valid dedication to the public use, of the streets and ways marked on the plat, binding upon such proprietors, without any formal acceptance of such dedication by the public authorities. Williams v. Smith, 22 Wis. 594 [p. 566 in Second Edition]; R. S., ch. 47, sec. 5 (Tay. Stats., 774, sec. 5). We do not say, however, that such acceptance is not necessary to render the municipality within which such street or way is located, liable for damages resulting from the same being out of repair. We leave that proposition undecided."

The view we take of this case limits our consideration to the effect of the dedication being limited to the sole use in common of the owners of the lots in the Edgewater Beach addition. We think it must be held that when Mr. Kennedy, with knowledge of that condition, recorded the plat, he accepted the condition. Respondents argue that the plat can only be considered as an offer on the part of Mr. Kennedy to dedicate; that his offer was never accepted, and that the offer was terminated by Mr. Kennedy's death in 1939. Under the rule quoted in Pettibone v. Hamilton, supra, the recording of the plat and the conveyance of lots by the Kennedys, with reference to the plat by lot number and block number, constituted a valid dedication of all streets shown in the plat for the use in common of all lot owners.

Any irregularities or defects in the execution of the plat, or in any proceedings, order, or resolution on the part of the board of trustees of the village are cured by the provisions of sec. 80.63(1) and (2), Stats. 1927, which provisions have continued in the statutes to the present time under the same section number.

In any event, plaintiffs are estopped to deny the legal existence of Green street. In Smith v. Beloit, 122 Wis. 396, 409,100 N.W. 877, the court quoted from Rusk v. Berlin, 173 Ill. 634, 50 N.E. 1071, as follows:

"Where, after platting land, the owner sells lots and blocks with reference to the streets therein described, both he and his grantees are estopped to deny the legal existence of such streets, although there is not a sufficient statutory dedication, owing to the plat not being properly acknowledged." To same effect see Donohoo v. Murray, 62 Wis. 100, 103, 22 N.W. 167;McFarland v. Lindekugel, 107 Wis. 474, 477, 83 N.W. 757.

Plaintiffs cannot prevail in this action because: (1) There was a good dedication of Green street for the use and benefit in common of all lot owners in the plat; and (2) they are estopped to deny the dedication. In arriving at this conclusion, we attach no significance to the resolution adopted by the village board on October 7, 1941. We need not decide whether the board of trustees at that time had any authority to unconditionally accept the plat as a dedication of all the streets in the plat to the public use.

By the Court. — Judgment reversed. Cause remanded with directions to dismiss the action.