University of Our Lady of the Sacred Heart v. City of Watertown , 150 Wis. 505 ( 1912 )

.Kebwiít, J.

The first question .presented is whether the strip of land was ever dedicated to the public. It is clear that there was no completed common-law dedication, because no acceptance by the public. But it is insisted that there was a statutory dedication. Secs. 1, 2, 3, 4, and 5 of ch. 4/1, E. S. 1858, were in force at the time of the alleged dedication.

Sec. 1 provides that when a person wishes to lay out a town in this state, or an addition or subdivision of out-lots, such person shall cause the same to be surveyed and a plot thereof made, which shall particularly describe and set forth all the streets, alleys, commons, or public grounds, and all in- and out-lots or fractional lots within, adjoining, or adjacent to said town, giving the names, widths, courses, boundaries, and' extent of all such streets and alleys.

Sec. 3 provides that the county supervisors or proprietors of the town, addition, or subdivision of oufilots shall, at the time of surveying and laying out the same, .plant and fix at a corner of the public ground, or at the corner of a public lot, if any there be, and, if there be none, then at the corner of some one of the in-lots in the town and at the corner of each out-lot, a good and sufficient stone of such size and dimensions and in such manner as the surveyor shall direct, for the corner from .which to make future surveys, and the point or points where the same may' be found shall be designated on the plot or map.

Sec. 4 provides tliat the plot or map after completion shall be certified by the surveyor, and acknowledged, and a certificate of acknowledgment shall be indorsed on the plot or map, which certificate and acknowledgment shall also be recorded and form a part of the record.

Sec. 5 provides that when the plot or map shall have been made out, certified, acknowledged, and recorded as required by this chapter, every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such upon said plot or map, shall be deemed in law and equity a sufficient conveyance to vest the fee simple of all such pax-cel or pai-cels of land as are therein expressed, and shall be con-sidei’ed to all intents and purposes a general warranty against such donor or donors, their heirs and representatives, to the said donee or donees, grantee or grantees; and the land intended to be for streets, alleys, ways, commons, or public uses shall be held in the corporate name in trust to and for the uses and purposes set forth and expressed and intended.

Sec. 4, ch. 210, Laws of 1865, relating to the platting of lots and lands in the city of W cuter town, was in force at the time of the alleged dedication, and provides that any person owning a lot or tract of land within the corporate limits of the city of Watertown, who may desire to subdivide or plat such lot or tract of land into city lots, shall in platting the same cause the streets and alleys to correspond in width and general direction with the streets and alleys through the lots and blocks in said city adjacent to said tract of land so platted; “and before recording such plat, as required by law, it shall be the duty of the person or persons making such plat, to submit the same to the common council of said city for approval, and if such plat shall be approved by the common council, it shall be lawful for the party or parties making such plat, to record the same in the maimer prescribed in the Revised Statutes of this state concerning town plats; but ex-eept such, plat shall be approved “by rósolution adopted by said common council, a copy of which, duly certified to by the city clerk, shall be affixed to said plat, it shall not be lawful for the register of deeds to receive such plat for-récord; and the person or persons neglecting or refusing to comply with the requirements of this act, shall forfeit and pay a sum not less than one hundred dollars, nor more than five hundred dollars, and the register of deeds who shall record such plat without such resolution of the common council thereto attached, approving the same, shall forfeit and pay a sum not less than tweqty-five dollars, nor more than fifty dollars.” 6

There was no attempt whatever made to comply with the provisions of the statute above quoted. This statute is mandatory, and absolutely prohibits the recording of the plat until approved in the manner therein provided, and makes it unlawful to receive it for record -until so approved, and attaches a penalty for violation of the statute.

The law is well settled in this state and elsewhere that in order to make a valid statutory dedication the statute must be substantially complied with. Gardiner v. Tisdale, 2 Wis. 153; Emmons v. Milwaukee, 32 Wis. 434; Fleischfresser v. Schmidt, 41 Wis. 223; Chicago v. Drexel, 141 Ill. 89, 30 N. E. 774; Brooks v. Topeka, 34 Kan. 277, 8 Pac. 392.

It is argued that we should presume that ch. 210, Laws of 1865, was complied with. But we cannot presume a thing was done which the record shows was not done. The law required a copy of the resolution of approval duly certified to be affixed to the plat. None appears upon the plat. It is only after the plat has been made, certified, acknowledged, and recorded, . as required by the statute, that the title passes. Sec. 5, ch. 47, E. S. 1858. Oh. 210, Laws of 1865, not having been complied with, the plat was not entitled to record, hence nq title to the strip of land in question passed to the public. It follows that there was no statutory dedication.

It is further contended that the provisions of the Statutes of 1858 referred to, or some of them, were not complied with, hence there was no dedication of the strip for that reason. Also that if there ever had been a dedication it was abandoned by the defendant, and that in any event the defendant is es-topped from claiming that the strip was dedicated to the public. We need not and do not pass upon these contentions, ■since there was no statutory dedication without compliance with ch. 210, Laws of 1865.

By the Court. — The judgment of the court below is affirmed.