Opinion
October 31, 1963 —
November 26, 1963.
APPEAL from a judgment of the county court of Rock county: MARK J. FARNUM, Judge. Affirmed.
For the appellants there was a brief by Geffs, Geffs, Block Geffs of Janesville, and oral argument by Jacob Geffs.
For the respondents there was a brief by Gerald W. Noll of Beloit, for the Lockharts, Rigginses, and Osborns, and by W. A. Bolgrien, city attorney of the city of Beloit, and oral argument by Mr. Noll.
Action to have a resolution of the city council of Beloit vacating part of a street named Cleora drive declared void. Upon respondents' motion, summary judgment was entered dismissing appellants' complaint on its merits. Appeal is from this judgment.
The record shows as undisputed the following facts:
In 1954, appellants were owners of real estate which they platted and subdivided as Poff's Sun Valley. According to a map drawn for appellants in January, 1963, by Clayton Shimeall showing Cleora drive as it appeared on that plat, there was a gap in this street of 991.25 feet caused by the interposition of appellants' lot 310 of Poff's Fourth Sun Valley. The city council of Beloit approved this plat on February 15, 1954; it was recorded March 3, 1954.
Then in 1959, certain landowners, who later became respondents in this action, joined with appellants to plat and subdivide Christilla Heights, a subdivision adjacent to the west of Poff's Sun Valley. The director of regional planning approved this plat on May 21, 1959, and the city council approved it on June 22, 1959; the plat was recorded but it is not part of this record, and there is no indication in the record whether Cleora drive was shown on this plat as a continuous street or as two separate streets.
While Christilla Heights was being subdivided, the city planning commission prepared an official map for suggestions to the public. This official map showed many proposed or planned new streets in what is Christilla Heights, Poff's Sun Valley and Poff's Fourth Sun Valley. None of the planned new streets were given names, but on this map dotted lines indicate a future extension of Cleora drive across lot 310. This would create an uninterrupted drive.
The city council by ordinance pursuant to sec. 62.23(6), Stats., approved this map as the official map for the city of Beloit. Sec. 62.23(6)(a) and (b), provides in material part:
" Official Map. (a) The council of every city may by ordinance or resolution establish an official map of the city showing the streets, highways, parkways, parks and playgrounds theretofore laid out, adopted and established by law, and such map is to be deemed to be final and conclusive with respect to the location and width of streets, highways and parkways, and the location and extent of parks and playgrounds shown thereon. Such official map is declared to be established to conserve and promote the public health, safety, convenience or general welfare. . . .
"(b) Such city council is authorized and empowered, whenever and as often as it may deem it for the public interest, to change or add to the official map of the city so as to establish the exterior lines of planned new streets, highways, parkways, parks or playgrounds, or to widen, narrow, extend or close existing streets, highways, parkways, parks or playgrounds. No such change shall become effective until after a public hearing in relation thereto before the city council or a committee appointed by the city council from its members, at which parties in interest and citizens shall have an opportunity to be heard. . . . The placing of any street, highway, parkway, park or playground line or lines upon the official map shall not in and of itself constitute or be deemed to constitute the opening or establishment of any street, parkway, park or playground, or the taking or acceptance of any land for such purposes."
Neither the city nor Poff, owner of the intervening lot 310, acted to dedicate the new-planned streets, but about three years later, on November 1, 1962, the respondents, all landowners fronting on Cleora drive between Frederick street and Linway drive (which latter lies at least 2,650 feet northwest of the proposed vacation), filed a petition dated October 30, 1962, with the Beloit common council to have Cleora drive between Burton and Frederick streets vacated pursuant to sec. 66.296, Stats. Cleora drive runs from northwest to southeast. The attempted vacation would close Cleora drive for approximately 600 feet between Frederick street and Burton street. All this lies northwest of lot 310.
On November 19, 1962, according to an affidavit filed in support of respondents' motion for summary judgment by Edward C. Bennett, city engineer, the city of Beloit approved a plat submitted by appellants which included the intervening lot 310. This plat did not dedicate or set apart any land for the purpose of connecting Cleora drive lying northwesterly of Poff's Fourth Sun Valley with Cleora drive lying southeasterly of it.
Appellants filed an objection, dated December 13, 1962, to the vacation petition alleging they owned 660.82 feet of frontage abutting on Cleora drive located within 2,650 feet and southeast of the portion to be discontinued.
On December 17, 1962, the Beloit city council adopted a resolution vacating that part of Cleora drive between Frederick and Burton streets.
Appellants commenced the present action against the lot owner respondents and the city of Beloit on January 8, 1963, to have the resolution declared void because, it is alleged, the petition did not have the signatures of the owners of more than one third of the frontage of the lots and land abutting on that portion of the remainder of Cleora drive which lies within 2,650 feet of the ends of that portion which was discontinued. Respondents answered and moved for summary judgment, filing affidavits in support of their motion. The county court also entertained a competing motion for summary judgment filed by appellants. The court denied appellants' motion and granted respondents' motion on the ground that the Cleora drive lying southeasterly of the portion of Cleora drive sought to be discontinued was not included in the 2,650 feet because it was separated from the latter. Appeal is from the judgment granted in favor of respondents.
Further facts will be referred to in the opinion.
The question raised on appeal is whether the southeasterly Cleora drive, as shown by Shimeall's map, can be counted as within the 2,650 feet contemplated by sec. 66.296(1), Stats.
That portion of Cleora drive lying northwest of lot 310 between Burton and Frederick streets was vacated by a petition filed pursuant to sec. 66.296(1), Stats., which provides:
"DISCONTINUANCE OF STREETS AND ALLEYS. (1) The whole or any part of any road, street, slip, pier, lane or alley, in any city of the second, third or fourth class or in any incorporated village, may be discontinued by the common council or village board upon the written petition of the owners of all the frontage of the lots and lands abutting upon the portion thereof sought to be discontinued, and of the owners of more than one-third of the frontage of the lots and lands abutting on that portion of the remainder thereof which lies within 2,650 feet of the ends of the portion to be discontinued, or lies within so much of that 2,650 feet as shall be within the corporate limits of the city or village. The beginning and ending of an alley shall be deemed to be within the block in which it is located."
Appellants assert that the petition was insufficient because it did not contain the requisite number of landowners fronting on Cleora drive within 2,650 feet of the ends of the portion to be discontinued and, therefore, the resolution based on it was void. The record shows that the petition was not signed by any owners of lots fronting on the street called Cleora drive lying southeast of that portion to be discontinued. From the map in the record, it appears that this Cleora drive is separated from the other Cleora drive by about 1,000 feet of land, which land belongs to appellants and is part of Poff's Fourth Sun Valley.
The question is whether when Cleora drive, proceeding southeasterly, encounters lot 310, it expires and ceases to exist, or whether on lot 310's opposite side, 1,000 feet away, Cleora drive experiences a resurrection and resumes its original existence and identity. If we adopt the second alternative, appellants have sufficient lot frontage on Cleora drive southeast of the gap to prevent, by withholding consent, the vacation now at issue. On the other hand, there has been no continuation of Cleora drive across lot 310. The official map of 1959 indicates a section of highway proposed to carry Cleora drive across lot 310, — an "if, when and maybe" declaration of city intention. Appellants disregarded the map when in 1962 they obtained approval of a plat of their land without providing for such link connecting the two ends of the two Cleora drives. Though appellants contend now that it was always their intention to make one continuous street of Cleora drive as suggested by the official map, their conduct in filing their 1962 plat without provision consistent with such an alleged intention seriously detracts from the strength of that argument.
The construction of the term "street" is necessary in order to determine whether the southeast portion of Cleora drive is part of the street of which a portion is to be discontinued. The term generally means a public way used for purposes of travel. Wray v. Norfolk W. R. Co. (1950), 191 Va. 212, 61 S.E.2d 65. To be part of the same street, then, is to be part of the same public way. Streets are connected with each other and form a network of public ways, yet individual streets as such are identifiable from each other because they are distinct public ways. Streets are named for convenience in locating them. 10 McQuillin, Mun. Corp. (3d ed.), pp. 550, 551, sec. 30.14. Street names are not conclusive in identifying two public ways as the same street. Unless the two public ways named Cleora drive are one continuous public route of travel, it is evident that they should be identified as separate and distinct public ways although having the same name. Therefore, the ordinary meaning of the term "street" as contemplated by sec. 66.296, Stats., does not include that Cleora drive lying southeast of the portion to be discontinued if the former is not part of the same public way as the latter.
The placing of Cleora drive on the official map as a proposed, tentative, future, continuous public way did not constitute the establishment of any street or the taking or acceptance of the land between the two public ways. Sec. 62.23(6)(b), Stats., provides:
". . . The placing of any street, highway, parkway, park or playground line or lines upon the official map shall not in and of itself constitute or be deemed to constitute the opening or establishment of any street, . . . or the taking or acceptance of any land for such purposes."
Appellants rely on Johnston v. Lonstorf (1906), 128 Wis. 17, 107 N.W. 459, for support of their contention that the term "street" in sec. 66.296, Stats., does not mean continuous public way. In that case we held that although a portion of an alley was a cul-de-sac it did not prevent it from being part of a public way. This case does not support appellants' contention because that portion of the public alley constituting the cul-de-sac was not separated from the other portion of the alley but was connected to it to form one continuous public way.
We conclude, when sec. 66.296, Stats., speaks of the requirement that a petition to vacate a street needs to be submitted by owners of more than one third of the frontage of the lots and lands abutting on that portion of the remainder lying within 2,650 feet of the ends of the portion to be discontinued, they must be the owners of lands abutting on the same street to be discontinued. In our view, the Cleora drives lying on opposite sides of lot 310 and 1,000 feet apart cannot properly be considered to be one street. The Cleora drive lying southeast of lot 310 is a separate street and lots fronting on it cannot be included in the 2,650 feet specified in the statute.
The record shows that the petition was signed by the owners of more than one third of the frontage of the lots and lands abutting on the Cleora drive northwest of the interruption and within the 2,650 feet of the ends of the portion to be discontinued. The petition filed with the Beloit city council complied with the ownership requirement of the statute, and the resolution of the city council discontinuing Cleora drive between Burton and Frederick streets is valid. Summary judgment was properly granted in favor of respondents.
By the Court. — Judgment affirmed.