#### Rau and wife, Respondents, vs. Freund, Appellant

*December 6, 1916*

January *16, 1917.*

*Plats of land: Validity: Streets: Dedication: Reference to plat in conveyance: Estoppel: Intent.*

1. Where a plat made by the owner of land and recorded, but not signed or acknowledged by any one, covered also an adjoining tract the owners of which never assented to or adopted it as a plat of their land, it did not constitute a grant or dedication of a strip marked thereon as a street in said adjoining tract.

2. A plat not entitled to record may be referred to, in conveying the real estate it embraces, for the purposes of description and *28identification; but sucb a reference does not of itself make the plat operative as a statutory dedication of a strip indicated thereon as a street.

3. Plaintiff conveyed to defendant a parcel of land by metes and bounds, starting at a point designated on an “assessor’s plat” as a lot corner. An adjoining strip was not designated on that plat by name as a street, although it had been so designated on an invalid plat not made by plaintiff, and the city had never accepted it as a street but had treated and assessed it as plaintiff’s private property. Defendant did not, at the time, understand that such strip was a street, and he afterwards bought a part of it from plaintiff. *Held,*that there was no dedication by plaintiff of the strip for a street by way of an estoppel *in pais.*

4. To constitute a dedication of land as a street by way of an es-toppel *in pais*it is essential that the donor should intend to set the land apart for the benefit of the public.

Appeal from a judgment of tbe municipal court of Outa-gamie county: Albeet M. SpeNOEe, Judge.

*Affirmed.*

Tbis is an action to enjoin a continuing trespass on a tract of land in tbe city of Seymour and to recover damages for sucb alleged trespass.

Tbe strip of land bere in question was owned, prior to March, 1874, by one Cyrus Need, wbo deeded it, as a part of a six-acre tract, to one Mitcbell at that time. In 1892 Mitcbell sold and conveyed tbe six acres to tbe plaintiffs, describing it by metes and bounds, tbe description being tbe same as that in the deed from Need to Mitcbell. After Need bad sold tbis land to Mitcbell be made a plat of another tract of land and included in sucb plat tbe six-acre tract theretofore sold to Mitcbell. Tbis plat was recorded, but was not signed by any one. Tbe strip in question was designated in sucb plat as “Mitcbell street.” A second plat was made by tbe city of Seymour pursuant to cb. 57, Laws 1887. Tbis was a resurvey of tbe land as platted by Need and conformed to tbe Need plat, but did not call tbe strip bere involved “Mitchell street.” In 1894 tbe plaintiffs herein conveyed a tract of land to tbe defendant which lies adjacent to and south *29of tbis so-called “Mitchell street.” This land was described by metes and bounds, starting at a point of a lot as platted by Reed. In 1898 the defendant purchased more land from the plaintiffs, and in 1908 plaintiffs conveyed a small parcel of this “Mitchell street” strip, 11 feet wide and 180 feet deep, to defendant, adjoining the property then owned by him. The defendant claims that he at this time made an agreement with *George Rau,*one of the plaintiffs, for an easement for ingress and egress to and from his bam, which fronted on what he claimed to be “Mitchell street.” This claim of an easement over “Mitchell street” is denied by the plaintiffs, as is also the claim that this strip of land was ever dedicated as a street. In all of these conveyances by plaintiffs to defendant the only plat referred to was the “assessor’s plat of the city of Seymour.”

The municipal court awarded judgment enjoining defendant, his agents and servants, from trespassing upon this strip of land and that the title to this strip of land is in *Angeline Rau.*From such judgment this appeal is taken.

For the appellant there was a brief by *Gady & Strehlow*of Green Bay, and oral argument by *Samuel H. Gady.*

For the respondents there was a brief by *Martin, Martin & Martin*of Green Bay, and oral argument by *P. H. Martin.*

Siebecker, J.

The defendant justifies his acts of alleged trespasses on the strip of land in question upon the ground that it is a public street in the city of Seymour. The plaintiffs claim that the strip is not a street and that it is not subject to any easement whatsoever. Plaintiffs allege ownership of. the strip and that they are entitled to the possession thereof to the exclusion of the defendant and all other persons. The defendant denies these claims and alleges that the strip was platted as a public street, and if no public street exists he claims to have acquired the right to use the same as a *30passageway for ingress and,egress in connection with his adjoining property. There is no record proof 'of granting defendant a right entitling him to nse this strip as a passageway for ingress and egress, nor does the evidence show that defendant has in any way become vested with such a right. .The trial court correctly found that the evidence wholly fails to show that the defendant has acquired the right of a private passageway over this strip.

The claim that this strip is a public street is based on the grounds that the owners thereof dedicated it as a street by the statutory platting of the tract of which it is a part and by the acts of the owners by operation of law. It appears that one Oyrus Reed sold a six-acre tract, including this strip,- to Mitchell and Stewart in August, 1813, and deeded the same to Mitchell in March, 1814, describing it by metes and bounds as a part of the southeast quarter of the southeast quarter of section 29 of town 24. Mitchell and wife conveyed it by the same description to *George Rau*in October, 1892. It also appears that Oyrus Reed, after having deeded this six-acre tract to Mitchell, included it in a plat with another tract and caused the strip here in dispute to he outlined and designated on such plat as “Mitchell street.” This private plat was recorded, but was not signed or .acknowledged by any one. The owners of this six-acre tract at no time assented to or adopted such plat as a plat of their tract. Under these facts and circumstances the plat never became a valid plat of the ground, and the inclusion of this six-acre tract in such plat is wholly ineffectual to divide it into blocks, lots, and streets, under secs. 2260-2264, Stats. It necessarily results that the pretended plat did not constitute a grant of the strip in question as and for a street. *Van Valkenburgh v.*Milwaukee, 30 Wis. 338; *Emmons v. Mil*waukee, 32 Wis. 434; *Fleischfresser v. Schmidt,*41 Wis. 223; *University of Our Lady of the Sacred Heart v. Watertown.*150 Wis. 505, 137 N. W. 754.

*31The defendant further claims that the plaintiffs are bound by the plat of Seymour as exemplified by the Reed plat and a copy thereof called the “Assessor’s plat,” which was made and recorded by the city of Seymour. It is well recognized that a plat not entitled to record may be referred to in conveying the real estate it embraces for the purposes of description and identification of the land conveyed. Such a reference does not of itself make the plat operative as a statutory dedication of such a strip as a street. The inquiry then is, Did plaintiffs estop themselves as against the defendant from denying the strip in question to be a public street ? It must be noted that the description in defendant’s deed conveying to him a parcel of land in this plat is one by metes and bounds, starting at a point designated on the plat as a lot corner. It also appears that the assessor’s plat does not designate the strip by name as a street and that the city at no time accepted it as a street, but treated the strip as the private property of plaintiffs and assessed it as plaintiffs’ private property. The evidence sustains the court’s finding that defendant at the time he purchased from plaintiffs did not understand that this strip was a public street and that he thereafter treated it as the private property of the plaintiffs by purchasing an eleven-foot strip thereof from plaintiffs for a valuable consideration and that he treated this eleven-foot strip as his private property. These facts and circumstances clearly refute all claims that plaintiffs expressly dedicated this strip to a public use and refute the inference that plaintiffs by their acts and conduct intended that such strip was apportioned for a street. We are persuaded that the trial court correctly determined these issues of fact and that they fail to show a dedication by plaintiffs of the strip for a street by way of an estoppel *in pads.*To constitute such dedication “It is essential that the donor should intend to set the land apart for the benefit of the public, for it is held, without contrariety of opinion, that there can be no dedication, unless *32there is present the intent to appropriate the land to the public use.” 1 Elliott, Roads & S. (3d ed.) § 138.

It is clear that the defendant acquired no right to use this strip as a street or as a private passageway.

By, *the Court.*— The judgment appealed from is affirmed.