#### Wegge, Appellant, vs. Madler and others, Respondents.

*September 17*

October *9, 1906.*

*Boundaries of land: Streets: Deed construed: “Corner” of lot: Costs of party defending separately.*

1. The grantee of a lot in a recorded plat takes title to the center 'of an adjoining street, subject to tbe public easement, even where tbe lot is described by metes and bounds extending to° tbe line of tbe street, altbougb without express -reference to such street, and also where tbe lot is described as bounded by tbe street. *

2. In a conveyance of part of a lot, described by metes and bounds, tbe expression “tbe northwest corner of” tbe lot is *held*to mean tbe point at tbe intersection of tbe south and east lines respectively of tbe two streets at tbe corner of tbe lot and not tbe point at tbe intersection of tbe center lines of such streets.

3. In ejectment, wber^ tbe sole heir of tbe common grantor of tbe parties was also brought in as a party and successfully defended by a separate attorney, she was entitled to recover full costs and disbursements, excluding such items as were common to both issues.

Apeeau from a judgment of tbe circuit court for Milwaukee county: WaeeeN D. TaeeaNt, Circuit Judge.

*Affirmed.*

*413Tbis is an action of ejectment. Tbe facts are undisputed, or found by tbe court, and are to tbe following effect: Ogden avenue runs east and west and is eighty feet wide. Yan Burén street is eighty feet wide, and crosses that avenue at right angles. The north side of lot 1, in block 137, abuts upon tbe south side of Ogden avenue, and the west end of that lot also abuts upon the east side of Yan Burén street. Adjoining that lot on the south side thereof is lot No. 2 in the same block, and that lot also abuts upon Yan Burén street on the west end thereof. Said lots were each a little over 127 feet long east and west, and a little over sixty feet wide north and south. At the times mentioned Julius G. 0. Kasten owned the portions of the two lots • here in question. On March 21, 1902, the said Kasten agreed in writing with one John 0. Kleist, acting for the plaintiff, to convey to him the parts of said lots described as commencing at a point fifty feet east of the northwest corner of said lot 1; thence east on the north line of said lot 1 to a point twenty-seven and one-half feet west of the northeast corner of said lot 1; thence south ninety feet; thence east to the east line of said lot 2; thence south to the southeast corner of said lot 2; thence west on the south line of said lot 2 to the east line of Ormsby’s land; thence north forty-five feet; thence west six feet; and thence north to the place of beginning. The strip of land twenty-seven and one-half feet wide off the east end of said lots was during the times herein mentioned the property of one Sonlander. In pursuance of that agreement the said Kasten on April 19, 1902, conveyed the same land therein described to the plaintiff. On May 12, 1902, said Kasten conveyed to the defendant *Madler*the parts of said lots described as commencing at the northwest corner of lot No. 1; running thence south seventy-five feet along the west line of said lots 1 and 2; thence fifty feet east, parallel to the north line of said lot 2, to a point which is seventy-five feet south of the north line of lot numbered 1; thence north, parallel to *414tbe west line of said lots 1 and 2, seventy-five feet, to a point in tbe north line of lot No. 1; tbence west, along tbe north line of said lot 1, fifty feet to tbe place of beginning.

This action was commenced against *Madler*alone May 22, 1902, and to tbe complaint therein Madler, by Carroll & Oar-roll, bis attorneys therein, answered. Thereupon and on June J, 1902, tbe complaint was amended by making tbe said Julius O. 0. Hasten a party defendant. To such amended complaint therein tbe said Hasten by bis attorney, Otto H. Hansen, made answer. August 13, 1902, tbe said Hasten died intestate, leaving him surviving tbe defendant *Alma Scheffer*as bis sole heir at law. Thereupon and in January, 1903, a separate action of ejectment was commenced by this same plaintiff against tbe said *Alma Scheffer*and *Alfred*Scheffer, her husband, and they by their attorney, John E. Burke, made answer to tbe complaint therein. April 18, 1903, tbe two actions were duly consolidated.

Upon tbe trial of tbe two actions thus consolidated a jury was waived, and at tbe close of tbe trial tbe court found in effect tbe facts stated, and upon such facts and tbe admitted facts reached tbe conclusion in effect that tbe title to tbe premises described in tbe deed to *Madler*was in him and superior to any claim or title thereto in tbe plaintiff, and that tbe plaintiff was forever barred from having or claiming any title under her said deed from said Hasten to tbe land so owned by tbe said *Madler*adverse to him, and that tbe defendants have their costs and disbursements therein to be taxed, and ordered judgment to be entered therein accordingly. Such judgment was duly entered July 3, 1905, dismissing tbe complaint upon tbe merits, and adjudging that *Madler*was entitled to tbe possession of tbe premises de scribed in bis deed, and that *Madler*recover from tbe plaintiff bis costs in tbe action taxed at $150.55, and that *Alma*and *Alfred Scheffer*have and recover from the plaintiff their costs in tbe action taxed at $56.22, and that executions issue *415to enforce sncb judgment. From sticb judgment and the whole thereof the plaintiff appeals.

*John C. Kleist,*for the appellant,

contended, *inter*alia, that where the corner of a lot or block or piece of -land, the occupied portion of which is bounded by two streets, or where the intersection of two streets, is named as the starting point in a description, this point will be the intersection of the center lines of such streets, unless the deed by apt, express language provides differently. *Cox v.Freedley,*33 Pa. St. 124; *Moody v. Palmer,*50 Cal. 31; *Low v. Tibbetts,*72 Me. 92; *Siueatman v. Bathriclc,*17 S. Dak. 138, 95 N. "VY. 422; *Potter v. Boyce,*73 App. Div. 383, 77 N. Y. Supp. 24 (in effect overruling *Holloway v. Delano,*18 N. Y. Supp. 700); *Gas Light Go. v. B., W. & O. B. Go.*11 N. Y. Oiv. Proc. 239. See, also, *Greer v. N. 7. G. & H. B. B. Go.*37 Hun, 346; *In re Cathedral Parkway,*46 N. Y. Supp. 832, 834; *Perrin v. N. 7. O. B. Go.*36 N. Y. 120; *Putzel v. Van Brunt,*40 N. Y. Super. Ct. 501; *Stevens v. New 7ork,*46 N. Y. Super. Ot. 274; *Oxton v. Groves,*68 Me. 371; *Dean v. Lowell,*135 Mass. 55, 60; *Gould v. Pastern B. Go.*142 Mass. 85; *Paul v. Garver,*26 Pa. St. 223, 226; *Marsh v. Burt,*34 Vt. 289.

Por the respondent *Madler*there was a brief by *Carroll & OarroTl,*and oral argument by *George J. Carroll.*

*John F. Burke,*for the respondents *Scheffer.*

Cassoday, O. T.

1. It will be observed that the description of the land conveyed to the plaintiff commenced at a point fifty feet east of the northwest corner of lot 1, whereas the description of the land conveyed to the defendant *Madler*commenced at the northwest corner of lot 1. Thus it appears that the northwest corner of the lot was to be the northwest comer of *Madler's*land, and that a point fifty feet east of that comer was to be the northwest corner of the plaintiff’s land. The important question in the case, therefore, is as to the location of the northwest corner of that lot. The defend*416ants claim and the court held that the northwest corner of the lot was at the point of intersection of the south line of Ogden avenue and the east line of Yan Burén street. The plaintiff contends that the northwest corner of that lot must be understood to mean the point of intersection of the center line of Ogden avenue and the center line of Van Burén street. In

[The heavy lines show defendants’ claim as to the boundaries of the land conveyed by Kasten to the plaintiff. The dotted line indicates plaintiff’s claim as to the last course in the description in his deed.]

support of sucb contention counsel invoke tbe well-established' rule that the grantee of a lot in a recorded plat takes title to-' the center of an adjoining street, subject to the public easement. *Ford v. C. & N. W. R. Co.*14 Wis. 609; *Pettibone v.*Hamilton, 40 Wis. 402; *Norcross v.*Griffiths, 65 Wis. 599, 606, 607, 27 N. W. 606; *Andrews v. Youmans,*78 Wis. 56, *41747 N. W. 304; *Brown v. Baraboo,*98 Wis. 273, 74 N. W. 223. And this is so even where the laud is described by metes and bounds, extending to the line of the street or highway, although without express reference to such street or highway. Id. The same is true where the lot or land described is bounded by a public street or highway. *Gove v. White,*20 Wis, 425; *Lins v. Seefeld,*126 Wis. 610, 105 N. W. 917, and cases there cited. But, in view of the fact that the owner of such lot or land has no right to the possession or occupancy of any portion of such public street or highway adjoining the same, it is not customary to mention such street or highway in making a conveyance of such lot or land. It was held by this court many years ago that the land within the recorded plat of any city or village, “owned and occupied” by the debtor as a homestead, was a quarter of an acre, exclusive of the public street upon which it abutted. *Weisbrod v. Daenicke,*36 Wis. 73. This was put on the ground that “such occupation and use” by the owner of the homestead was “inconsistent with the public easement” in such street. The correctness of- such ruling is obvious. It is claimed that the contention of the plaintiff has been directly adjudicated in other-jurisdictions. The cases cited and seemingly relied upon, however, merely reiterate well-established rules of law repeatedly sanctioned by this court in cases already cited and many others which might be cited. *Cox v. Freedley,*33 Pa. St. 124; *Low v. Tibbetts,*72 Me. 92; *Moody v. Palmer,*50 Cal. 31; *Potter v. Boyce,*73 App. Div. 383, 77 N. Y. Supp. 24; *Sweatman v. Bathrick,*17 S. Dak. 138, 95 N. W. 422.

At the time of making the contract with Kleist for the benefit of the plaintiff, Kasten owned parts of lots 1 and 2, having a frontage on Ogden avenue of a few inches more than 100 feet. In making that contract and the deed given to the plaintiff in pursuance thereof Kasten manifestly intended to convey and did convey to the plaintiff enough of the eastern portion of the lots then so owned by him to give a frontage of *418fifty feet on Ogden avenue. Tbe land so conveyed adjoined the strip of land belonging to Sonlander and mentioned in the foregoing statement. And by Kasten’s subsequent deed to *Madhr*he intended to convey and did convey the balance of said lots so owned by him, having a frontage on Ogden avenue of about fifty feet. The claim of the plaintiff that her west line ran in a northwesterly direction so as to give her a frontage of more than seventy-six feet on Ogden avenue, leaving less than twenty-four feet frontage on that avenue to be conveyed to Madhr, is, in our judgment, without foundation. As held by the supreme court of Indiana, the lot must be understood to mean the land independently of the street or avenue. *Montgomery v. Hines,*134 Ind. 221, 33 N. E. 1100. The trial court properly held that the plaintiff had no cause of action.

2. Error is assigned because the court allowed the defendants *Scheffer to*tax a full bill of costs and disbursements. No objection is made to the allowance of costs and disbursements in favor of *Madhr.*He defended as purchaser from Hasten, who was brought into the case as defendant. Hasten died, and thereupon *Mrs.*Scheffer, as his sole heir at law, and her husband were brought into the case as defendants. Of course, it became necessary for them to defend or allow judgment to go against them by default. They appeared by a separate attorney ; and, being successful, we perceive no reason why they were not entitled to legitimate costs. Of course, the items of costs were not to be unnecessarily duplicated. Accordingly the trial court disallowed to the *Scheffers*all items that were | common to both issues. We perceive no error in such ruling.'

*By the Gourt.*— The judgment of the circuit court is affirmed.