
    Thorndike and others, Appellants, vs. Milwaukee Auditorium Company and another, Respondents.
    
      November 16, 1909
    
    May 24, 1910.
    
    
      Platting lands: Public squares: Dedication: Interest left in dedicator: Curative statute: Trusts: Diversion or misuser of property: Who may maintain action: Taxpayers’ action: Pleading.
    
    1. A plat duly acknowledged and recorded under the act of the territory of Michigan of April 12, 1827, conveys the fee in trust of a public square designated on such plat, and leaves no present interest in the dedicator or in his heirs or grantees in such land.
    2. A statutory dedication by such platting has the legal effect of a conveyance in fee in trust for the public.
    3. A defective statutory dedication, if accepted by the public, is good as a common-law dedication.
    4. A common-law dedication of land for public uses conveys an easement in the public sufficient for such purposes, but leaves the fee in the dedicator.
    5. Under sec. 2263, R. S. 1878, a statutory dedication which conformed to the statute or which, failing so to conform in minor particulars, was corrected by a curative statute (ch. 348, Laws of 1883), passed the fee in trust for the public to the town, city, or village and left no present interest in the dedicator or his heirs in case of a public square.
    6. It is the settled law of this state that in the case of a road or street, whether acquired by condemnation, by conveyance, by common-law dedication, or by statutory dedication, the city, town, or village takes only an easement for highway purposes, while the fee is held by the abutting owners. This brings all roads and streets within an uniform rule and has become a rule of property; but this rule will not be extended to public squares which have become such by statutory dedication.
    7. Public squares created by statutory dedication under sec. 2263, Stats. (1898), and accepted by the public belong to the city in fee in trust for the public, and the dedicator or his heirs have no present interest in the land. Milwaukee v. M. & B. B. Go. 7 Wis. 85, so far as it holds to the contrary, overruled.
    8. Where the plaintiffs have no interest differing from that of any other member of the public in preventing misuser of such public square, they cannot maintain an action in their own right as heirs of the dedicator.
    9. The misuser or diversion of trust property does n®t operate to forfeit the title of the trustee, in the absence of any such express condition in the conveyance to the trustee.
    10. The remedy in such case is a suit in equity by the proper party plaintiff to restrain the unlawful diversion or the misuser of the trust property. Public trusts like those created by the statutes referred to must be enforced in the same manner and by the same persons as are entitled to enforce charitable trusts.
    11. One who has no interest differing from that of any other member of the public in preventing the misuser of such trust property cannot maintain a suit in his own right for the purpose of preventing misuser.
    12. Where a complaint contains no averment that the action is brought in behalf of the plaintiffs and others similarly situated with respect to the subject matter of the action, and fails to show that the right sought to be vindicated is a public right to which the whole body of the taxpayers only are entitled, but on the other hand sets forth the ownership of the land in question and its platting by the ancestor of the plaintiffs, traces the title from such ancestor, and then avers the diversion or misuser of the trust property apparently as a private wrong to plaintiffs, the action will not be sustained as a class action or an action in behalf of the public, the beneficiaries under the trust mentioned.
    Appeal from a judgment of the circuit court for Milwaukee county: W. J. Tuioteb, Circuit Judge.
    
      Affirmed.
    
    
      Frank M. Iioyt, for the appellants,
    contended, inter alia, that the appellants as heirs of the dedicator could maintain t.ln'g action: Waiven v. Lyons City, 22 Iowa, 351; Rowzee v. Pierce, 75 Miss. 846, 23 South. 307. A resident taxpayer could maintain the action. McIntyre v. Board of Comm’rs, 
      15 Colo. App. 78, 61 Pac. 237; Crampton v. Zabriskie, 101 U. S. 601; Davenport v. Buffington, 97 Fed. 234; 2 Dill. Mun. Corp. (4th ed.) §§ 653, 914. A municipality cannot use, for purposes foreign to the dedication, lands dedicated for •a public park. Riverside v. MacLain, 210 Ill. 308, 71 N. E. 408; Sachs v. Trustees, 79 Ill. App. 439; Board of Ed. v. Kansas City, 62 Kan. 374, 63 Pac. 600; Portland & W. V. R. Co. v. Portland, 14 Oreg. 188, 12 Pac. 265; St. Paul v. C., M. & St. P. R. Co. 63 Minn. 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458; Price v. Thompson, 48 Mo. 361; Fessler v. Union, 67 N. J. Eq. 14, 56 Atl. 272, affirmed 68 N. J. Eq. 657, 60 Atl. 1134. The objection that the complaint was not brought on behalf of plaintiffs and all taxpayers similarly situated was waived by failure to specifically •demur on that ground. State v. Tuttle, 53 Wis. 45, 9 N. W. 791; Wood v. Union Cospel C. B. Asso. 63 Wis. 9, 22 1ST. W. 756; Manseau v. Mueller, 45 Wis. 430; Catcher v. Milwaukee, 133 Wis. 35, 113 N. W. 417. Public property ■cannot be used for the purposes here sought. Att’y Gen. v. Eau Claire, 37 Wis. 400; Wisconsin K. Inst. v. Milwaukee Co. 95 Wis. 153, 70 N. W. 68; State ex rel. New Richmond v. Davidson, 114 Wis. 563, 88 K W. 596, 90 N. W. 1067; State ex rel. Consolidated S. Co. v. Houser, 125 Wis. 256, 104 N. W. 77; Brodhead v. Milwaukee, 19 Wis. 624; Weeks v. Milwaukee, 10 Wis. 242; Foster v. Kenosha, 12 Wis. 616. The city acquired no right by adverse possession because the land had been dedicated to the use of the public. Childs v. Nelson, 69 Wis. 125, 33 N. W. 587; Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001; Madison v. Mayers, 97 Wis. 399, 73 N. W. 43; Ashland v. C. & N. W. R. Co. 105 Wis. 398, 80 N. W. 1101.
    For the respondent MilwauJcee Auditorium Company there was a brief by Quarles, Spence & Quarles, attorneys, and J. V. Quarles, Jr., of counsel, and oral argument by J. V. Quarles, Jr.
    
    For the respondent City of Milwaukee there was a brief by John T. Kelly, city attorney, and Walter II. Bender, assistant city attorney, of counsel, and oral argument by Mr. Bender.
    
    On the part of the respondents the following authorities, among others, were cited. As negativing the right of the plaintiffs to maintain this suit as heirs of the dedicator: Strong v. Doty, 32 Wis. 381; Mills v. Evcmsville Bern. 47 Wis. 354, 2 N. W. 550; Donnelly v. Bastes, 94 Wis. 390, 396, 69 N. W. 157; Greene v. O'Connor, 18 R. I. 56, 25 Atl. 692, 19 L. R. A. 262, and note; Adams v: First Baptist Church, 148 Mich. 140, 111 N. W. 757, 11 L. R. A. rr. s. 509, and note; Barclay v. Howell’s Lessee, 6 Pet. 498; Williams v. Milwmdcee Ind. Fxpo. Asso. 79 Wis. 524, 48 N. W. 665; Ü. 8. v. III. Cent. B. Co. 154 U. S. 225, 14 Sup. Ot. 1015; Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379. To the point that appellants, not being specially injured or damaged, cannot maintain this suit as a class action: Manson v. Bouth-Bound B. Co. 64 S. O. 120, 41 S. E. 832; 2 High, Injunctions (4th ed.) § 1301; Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829. That the legislature, lawfully representing the public beneficiary, could authorize a change of the use where no property was taken and no private rights infringed: Prince v. Crocker, 166 Mass. 347, 44 N. E. 446; Charles Biver Bridge v. Warren Bridge, 11 Pet. 420; Brooklyn Park Comm’rs v. Armstrong, 45 N. Y. 234; Clark v. Providence, 16 R. I. 337, 15 Ath 763; 2 Dill. Mum Oorp. (4th ed.) § 651.
   Timxin, J.

The complaint in this action averred that the plaintiffs are the sole heirs at law of Byron Kilboum, who died testate on December 16, 1870, leaving surviving him his widow, Henrietta, and his son, Byron H. Kilboum. His will, which was duly admitted to probate, after devising and bequeathing a life estate in certain real property and some personal property to bis widow, devised and bequeathed all the rest, residue, and remainder of his estate one half to Byron H. Kilbourn and the other half to I. A. Lapham in trust for the plaintiffs. In the year 1891 Byron H. Kil-bourn died intestate leaving surviving him the plaintiffs, his -only heirs at law. Henrietta died, and the trust to I. A. Lapham has long since been executed and the property which was the subject of that trust conveyed to the plaintiffs. The plaintiffs also averred that they own two described lots within the limits of the plat hereinafter mentioned and situate a short distance from the public square in question, but it does not appear that these lots abut on that square or on the streets in front of that square. One of the plaintiffs is a resident of Milwaukee. There is no averment that the suit is brought in behalf of the taxpayers of the city, no averment that either of the plaintiffs is a taxpayer, and that fact could only be deduced from the averment that plaintiffs own real estate in the city of Milwaukee. This averment is, however, inserted in the complaint for a wholly different purpose, namely, to show the interest of the plaintiffs in preserving the original ■dedication by reason of their ownership of lots in the plat as well as by force of their succession to the rights of Byron Balbourn through their father and through execution of the Lapham trust. It is averred that on October 8, 1835, Byron Kilbourn, being the sole owner in fee simple of fractional .governmerit lots 3 and 4 in the N. E. ■]- of section 29, township 7 N., of range 22 E., in Milwaukee county, made and recorded a plat of these and other lands belonging to him in .accordance with the act of the territorial legislature of Michigan approved April 12, 1827. In and by said plat he dedi•cated to the public a described square, space, or tract of land 420 feet in length by 150 feet in width, with the express proviso and condition duly written into and part of said plat .certificate and dedication that said space or square or tract was to be left vacant as public ground and no building was ever to be erected thereon by any body corporate or politic, except that in case of the town becoming incorporated the town authorities might erect a market house on such space. This dedication was duly accepted by “the public authorities.”

The Milwaukee Auditorium Company has taken steps under ch. 426, Laws of 1905, to join with the city of Milwaukee in the erection and maintenance of an auditorium or music hall, each to pay half the money necessary for that purpose. The city raises its share by sale of its bonds which it has issued for this purpose to the amount of $250,000, and the Auditorium, Company its share from the proceeds of subscriptions to its shares of capital stock. Plans and specifications have been prepared for a building 400 feet in length by 300 feet in width and 150 feet in height, with one or more auditoriums, offices, classrooms, studios, music halls,, music rooms, gymnasiums, lodge rooms, and accommodations for industrial, commercial, scientific, educational, fraternal, and musical organizations, and labor associations desiring to use the same for kindred purposes, and defendants-intend to operate and manage the building in the manner specified in ch. 426, supra. The defendants give out and threaten to, and are about to, proceed with the erection of this building on the public square or space above mentioned and upon a strip of land adjoining this on the west owned by the city. The building so proposed to be erected will completely cover the dedicated square or space, its erection and maintenance amount to an appropriation of the public square to private gain and the diversion thereof to a purpose foreign-to that for which the land was dedicated by the plaintiffs’" said ancestor. Prayer that the defendants be enjoined from erecting this building on the public square and for general relief.

The defendants answered jointly, denying that the use-proposed was foreign to the purposes for which the land was dedicated, and averring, further, that from 1867 to 1881 this space in question was let or leased as a site for market buildings. The latter buildings were demolished in 1881, and the whole square covered by a building used for the purposes of an industrial exposition owned by a private corporation which held from the city of Milwaukee a lease of the ground, and this use continued until June, 1905, when the exposition building was destroyed by fire and -not rebuilt. This lease to the exposition company was authorized by ch. 461, Laws of 1885. A claim of adverse possession is set up and a denial that the plaintiffs are wronged or injured or damaged by the acts in question.

The cause was tried and the court made findings supporting the averments of the complaint, except as to the right of the plaintiffs to maintain the action, and further to the effect that the square or space in question remained wholly vacant and unoccupied from its dedication down to 1867 or 1868, during which time it was commonly known as “the Second Ward Park.” Erom that time for about three years it was leased by the city to be built upon and used as a skating rink and was so built upon and used for three years, but the lease from the city covering the period last mentioned provided that the skating rink should be placed far enough back from the street to admit of the erection of stalls and booths for market gardeners. However, no such stalls or booths were erected or used during these three years. Thereafter and up to 1876 the space was used for a public market under a ground lease from the city to the owner of the building thereon and leases of booths and stalls from the lessee to the market men or dealers. In 1876 the city leased the space in question to a corporation called the West Side Market Association for the term of five years and five months at a nominal rental, and this corporation used the premises for market purposes as well as for theatrical and other amusements until 1880. At this date a corporation called the Milwaukee Industrial Exposition was organized for the purpose of constructing an industrial exposition building and operating the same. To this coi*poration the city of Milwaukee on October 12, 1880, leased the space in question with the adjoining land owned by the city for the term of fifty years at an annual rental of $1, said premises to be used only for the purposes of an industrial exposition in the city of Milwaukee as contemplated in the articles of association of the lessee, and for such other purposes of a public nature as the directors of said exposition company should approve. This lease further provided that the lessee should erect a building on said premises to cost not less than $150,000, and, in case of the destruction of this building by fire, if the same was not rebuilt within two years the lease should cease and determine.

Ch. 461, Laws of 1885, expressly authorized the city of Milwaulcee to lease this square or space for the purpose of maintaining a building thereon to he used for annual industrial expositions and for a public museum, and ratified and confirmed the lease already made. This exposition company went into possession under said lease, erected the required building, and used it from 1881 to 1905 for the purpose of holding annual expositions of machinery, merchandise, and other industrial products, and in the intervals between such annual expositions for holding conventions, athletic exhibitions, concerts, political meetings, a skating rink, and for various amusements, and the city used part of the building for a public museum and also for an art gallery for some part of this time. There were no stalls or booths in this building, and no part of the premises in question was used for market purposes since 1880. June 4, 1905, the exposition building was totally destroyed by fire and the lessee did not rebuild. The project of building a public hall of large capacity was under discussion in MüwmJcee in 1904, and a certain quasi- public association procured an option from the plaintiffs to build on the space in question in consideration of the payment to plaintiffs of $15,000. Nothing further was done under this option. In 1906 the Milwaukee Auditorium Company was organized as a corporation for the purpose of carrying •out the powers given by ch. 426, Laws of 1905, its capital stock fixed at 25,000 shares of $10 each, and its shares were subscribed for by 2,700 citizens of Milwaukee, upon which subscriptions $208,000 had been paid in. The common council of Milwaukee, upon vote of the electors of the city, issued the corporate bonds of the city as stated in the complaint and raised money. The defendants proceeded with the construction of the building, and had up to the time of trial expended $223,000 for that purpose. The building so in course of •construction will cost about $500,000, and is mainly a public hall or auditorium capable of accommodating from 7,500 to 10,000 persons. The easterly part of this building, which rests upon the dedicated space in question, consists of an •entrance to the auditorium sixty feet in width, also offices, corridors, toilet, and other rooms, and contains in the basement a large room 170 feet long and 60 feet wide, called ■“Market Hall.” North of this is a storage room 112 feet long and 78 feet wide; on the south end, rooms designated kitchens. On the first floor there is what is termed a banquet hall, 88 feet long and 60 feet wide; north of this on the same floor a music hall 92 feet long and 60 feet wide, capable of seating from 1,000 to 1,500 people; and on the second floor of this part of the building are rooms for the administrative officers of the board in charge and for other purposes. The city leased all this land to its codefendant for ninety-nine years, but afterward and by mutual consent of the parties thereto canceled this lease, and the indication of part of the basement space as “Market Hall” was apparently an afterthought, suggested by the exigencies of this litigation. There is no present necessity or demand for a public market place in MilimuJcee, but there is such necessity and demand for a public ball of large seating capacity and for a building devoted to the purposes for which this auditorium building is adapted, and its erection will prove a public benefit to the city and promote the welfare and public interests of the citizens.

It is then found that the city of Milwaukee and its lessee has openly and notoriously, under claim of right, devoted the space or square in question to purposes foreign to the purposes of a market house and public square since the year' 1868, and has used said premises for public purposes of various kinds since said date, and has leased the same and' collected rent therefrom, and has used said premises for public purposes other than those named in the certificate of' dedication as more particularly described in the previous findings since the year 1880, and such use has been continuous, uninterrupted, adverse, notorious, and under claim of right.

It is said by the appellants the two younger of the plaintiffs reached the age of twenty-one years on February 20, 1888. Byron H. Kilbourn, however, lived until 1897, and the legal title to the remainder of the property was vested in the trustee, Lapham. The trial court from these facts derived the following conclusions of law: (1) That the plaintiffs are not entitled to maintain this action. (2) That the legislature had the power to and did authorize the diversion of the use of the premises in question from the purposes for which they were originally dedicated to those for which they are intended by the defendants. (3) That the use to-which this square is proposed to be diverted is a public use. (4) That if the plaintiffs had a right to maintain this action such right would have been barred by subd. 4, sec. 4221,, Stats. (1898). (5) That the plaintiffs by laches have lost any right of action they may have had. (6) That defendants, are entitled to judgment.

We must of course be able to find that the plaintiffs have a cause of action stated in their complaint and existing in their favor either accruing to them directly or as heirs or representatives of Byron Kilbourn, or as lotowners in this plat,, or as representatives of a class consisting of the public or the-taxpayers, before this disposition of the case by the court below can be reversed. If this question is resolved adversely to the plaintiffs, we are not called upon to determine any other question in the case.

The legislative council of the territory of Michigan on. September 6, 1834, laid out, and on August 25, 1835, authorized, the organization of the county of Milwaukee. On October 8, 1835, Byron Kilbourn platted the land in question. On April 20, 1836, the territory of Wisconsin was by act of Congress set off from the territory of Michigan and established as a separate territory, and this included the-county of Milwaukee and the lands in question. On October 8, 1835, the following statute relative to platted town-sites was in force in the territory of Michigan (act of April 12, 1827) :

“Sec. 2. That such maps or plats as are required by this-act to be recorded, shall particularly set forth and describe-all the public grounds within such town, by its boundaries, courses and extent, and whether it be intended for streets, alleys, commons or other public uses, and all the lots intended for sale, by progressive numbers, and their precise length and width; and the maps made and acknowledged before a justice of the peace, a justice of the county court of the proper county where the town lies, or before a judge of the supreme court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance, to vest the fee of such parcels of land as are therein expressed, named or intended to be for public uses, in the county in which such town lies, in trust, to and for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever.” Laws of 1827, p. 278.

Beside tbe streets and alleys, numbered lots and blocks, this plat showed four vacant spaces, and the certificate accompanying the plat stated:

“The four spaces marked ‘public’ are of the dimensions represented by the lines on the plat and are to be left vacant as public grounds, no buildings ever to be erected on them by any body corporate or politic, except in the case of the town being incorporated the town authorities may erect a market house upon either of those spaces lying in front of blocks Nos. 36, 52, or 76, but no building shall be erected on the space in front of block No. 24.”

This suit relates to the space in front of block No. 52.

The record presents rather an anomalous condition. The second finding of the circuit court, not excepted to by appellants, contains the following:

“That such plat was duly made, acknowledged, and recorded by said Byron Kilbourn in accordance with the laws of the territory of Michigan (which territory embraced what is now the state of Wisconsin), to wit, ‘An act to provide for the recording of town plats, approved April 12, 1827.’ ”

At the same time there was received in evidence the decision and opinion of the court and findings of fact in the case of Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665, relating to the same plat and title. The case last cited determines that the Kilbourn plat was not duly acknowledged, but became effective as a statutory dedication by virtue of the curative act (ch. 348, Laws of 1883), and that a grantee of Byron Kilbourn had no interest in this public square. Considering the case from the viewpoint that the plat was duly acknowledged and recorded under the laws of Michigan, we have a statute giving the plat the legal effect of a conveyance in fee by the dedicator in trust and not the grant of a mere easement. The conveyance of a fee in trust leaves no present interest in the grantor or his heirs. Strong v. Doty, 32 Wis. 381. This effect was given to a statutory dedication under a similar statute in U. S. v. Ill. Cent. R. Co. 154 U. S. 225, 14 Sup. Ct. 1015; Hunter v. Middleton, 13 Ill. 50; Canal Trustees v. Havens, 11 Ill. 554; Matthiessen & H. Zinc Co. v. La Salle, 117 Ill. 411, 2 N. E. 406, 8 N. E. 81; Board of Ed. v. Edson, 18 Ohio St. 221; Young v. Board of Comm’rs, 51 Fed. 585; S. C. 59 Fed. 96; Union E. Co. v. Kansas City S. B. R. Co. 135 Mo. 353, 36 S. W. 1071. The conveyance of the fee, whether a fee-simple absolute or a limited fee to the grantee for his use or in trust for others, leaves no present interest in the grantor. Misuser or wrongful diversion of the property does not terminate or forfeit the title of the trustee, nor is it ground for ejectment in the absence of a stipulation in the conveyance forfeiting title for such misuser or diversion. 2 Dill. Mun. Corp. (4th ed.) § 653, and cases; Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665; Parker v. St. Paul, 47 Minn. 317, 50 N. W. 247; Goode v. St. Louis, 113 Mo. 257, 20 S. W. 1048; Barclay v. Howell’s Lessee, 6 Pet. 498; Archer v. Salinas, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145; Still v. Mayor, etc. 27 Ga. 502; Plumer v. Johnston, 63 Mich. 165, 29 N. W. 687. The remedy for misuser or wrongful diversion by the city is in equity by injunction, and under similar statutes the right to this remedy has been held to be in the city (Jacksonville v. Jacksonville R. Co. 67 Ill. 540); in the general property owners in the plat (Price v. Thompson, 48 Mo. 361); in the owner of a lot abutting on the public square (Comm’rs v. Lathrop, 9 Kan. 453); in citizens, lotowners, and original dedicators in a class action (Rowzee v. Pierce, 75 Miss. 846, 23 South. 307) ; in one of the original dedicators who also was the owner of lots fronting on the public square (Warren v. Lyons City, 22 Iowa, 351). We consider this question, however, settled in this state against the right of the appellants to maintain this action as heirs of the dedicator by the cases of Strong v. Doty, 32 Wis. 381, and Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665, which seem to be in line with U. S. v. Ill. Cent. R. Co. 154 U. S. 225, 14 Sup. Ct. 1015; Armstrong v. Portsmouth R. Co. 57 Kan. 62, 45 Pac. 67; and Lackland v. Walker, 151 Mo. 210, 52 S. W. 414. Considering that tbe original dedication was insufficient as a statutory dedication as ruled in Williams v. Milwaukee Ini. Expo. Asso., supra, and cases there cited, and only took effect as a statutory dedication upon the enactment of the curative statute (ch. 348, Laws of 1883), the final result is the same. In that view of this case, from October 8, 1835, up to the •enactment of the curative statute in 1883 this plat presented the problem of a defective statutory dedication continually tendered' to the public and never withdrawn. It is well settled that a defective statutory dedication, if accepted by the public, will be good as a common-law dedication. Gardiner v. Tisdale, 2 Wis. 153; 9 Am. & Eng. Ency. of Law (2d ed.) 36, and cases. Open squares in towns are as much within the principles of dedication as highways (Abbott v. Cottage City, 143 Mass. 521, 10 N. E. 325), and acceptance thereof may be indicated by common user (Id.). The doctrine of •dedication to public uses has always been extended and applied to public squares in cities and villages, these being regarded at ■common law as easements for the benefit of the public, and the fact of dedication may be established in the same manner .as in the case of highways and streets. 2 Dill. Mun. Corp. (4th ed.) § 644, and cases in note; Bates v. Beloit, 103 Wis. 90, 78 N. W. 1102; Lins v. Seefeld, 126 Wis. 610, 105 N. W. 917. Under this hypothesis, up to the time of the passage of the curative act the fee remained in the dedicator or his successor in interest, subject to an easement in favor of the public, as it always does in case of a common-law dedication. 13 Cyc. 486, and cases. Notwithstanding the more limited common-law dedication to the public had prior to that time taken effect, the enactment of the' curative statute in 1883 caused the Kilbourn plat to take effect as a statutory •dedication either under the Michigan statute heretofore ■■quoted, or under sec. 2263, R. S. 1878, which was the statute •of this state then in force. Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665. This latter statute ■also gives the plat the legal effect of a conveyance in fee— an effect beyond that of a common-law dedication. The trustee named in these statutes is different, but the title conveyed in trust is not.

By a long line of decisions in this state with reference to -streets and roads it has become the settled law of this state that in the case of a road or street, whether acquired by condemnation, conveyance, by common-law dedication or by statutory dedication, the city, town, or village takes only an easement for highway purposes, while the fee is held by the abutting landowner. This brings all roads and streets within an uniform rule; but whether the ruling was originally correct as regards statutory dedication by plat under the statutes quoted is doubtful. However this may be, the rule has been so often applied and is of such long standing that it has become a rule of property with reference to roads and streets and cannot now be departed from. Gardiner v. Tisdale, 2 Wis. 153; Taylor v. C., M. & St. P. R. Co. 83 Wis. 636, 53 N. W. 853; Weishrod v. C. & N. W. R. Co. 21 Wis. 602; S. C. 18 Wis. 35; S. C. 20 Wis. 419; Daniels v. Wilson, 27 Wis. 492; Pettibone v. Hamilton, 40 Wis. 402; Madison v. Mayers, 97 Wis. 399, 73 N. W. 43. But with respect to public squares created by statutory dedication, it was held in Williams v. Smith, 22 Wis. 594, that the city of Janes-ville could join with the owners of lots abutting upon a public square in a suit to prevent the diversion of the use of a square from that to which it was originally dedicated. In Williams v. Milwaukee Ind. Expo. Asso. 79 Wis. 524, 48 N. W. 665, it was said with reference to the public square here in question that one to whom Byron Kilbourn, after filing his defective plat, granted an undivided interest in all ■the platted land, but who began a suit after the enactment of tbe curative statute, bad no interest in tbe square in question. But in Milwaukee v. M. & B. R. Co. 7 Wis. 85, it was beld’ tbat tbe city bad no sucb interest in a public square as would’ enable it to maintain an action to enjoin tbe railroad company defendant from constructing its railroad in sucb. square.

Tbis condition of tbe precedents in tbis state with reference-to public squares under a statutory dedication leaves tbis court free to re-examine and construe tbat statute so far as-tbe same relates to public squares. Upon tbe face of these-statutes it is very clear tbat, as soon as tbe statutory dedication took effect, Byron Kilboum, or those claiming under him, parted with tbe title in fee to tbe municipality. When tbe municipality took the fee in trust for tbe public, tbis conveyance left no residue of title or interest in tbe dedicator or those claiming under him by virtue of which they could claim any present interest in tbe dedicated land. So far as tbe case relates to public squares created by statutory dedication, Milwaukee v. M. & B. R. Co. 7 Wis. 85, is overruled. These trusts for tbe benefit of tbe public come under tbe law relative to charitable-trusts, so far at least as tbe enforcement of tbe trust is concerned. 1 Beach, Trusts & Trustees, § 317, and cases in note; Armstrong v. Portsmouth B. Co. 57 Kan. 62, 45 Pac. 67; Lackland v. Walker, 151 Mo. 210, 52 S. W. 414. Tbis is a very ancient rule of the common law, and the right of tbe grantor in sucb conveyance, if it existed, would be a mere right of action and not an interest in the property. When we consider tbat sucb trusts may last for centuries, we get a suggestion of at least one of tbe reasons for tbis rule so far as public or charitable trusts are concerned. But tbe rule itself is firmly established. If tbe plaintiffs have no interest differing from tbat of any other member of tbe public in preventing tbe misuser of tbis property, they cannot maintain an action in their own right as heirs of tbe dedicator. We are convinced tbat tbe plaintiffs have no present interest in tbis public square, special or pe-euliar to them, and differing in. nature from the interest of other members of tbe public. It remains to be seen whether the present action can be sustained as a class action or a taxpayers’ suit. We do not intend to affirm or deny, in this opinion, the right of the taxpayers or lotowners as a class to restrain this use of the property in question in a suit brought by one or more in behalf of himself and all others similarly situated. We hold that the complaint in this action does not present such a case.

The general rule requires an express averment in the complaint to the effect that the action is brought in behalf of the plaintiffs and others similarly situate with respect to the subject matter of the action. Cawker v. Milwaukee, 133 Wis. 35, 113 N. W. 417. This averment may in some cases be omitted, “providing the complaint clearly shows upon its face that the right sought to be vindicated is a public right and the primary relief demanded is relief to which the whole body of taxpayers only are entitled.” This the complaint fails to do. It carefully sets forth the ownership of the land in question and its platting by the ancestor of plaintiffs, and then traces plaintiffs’ title from said ancestor. It sets forth that the plaintiffs own two lots in this plat, which lots are described, and avers that these lots are but a short distance from the square in question, and then the threat and intention to erect and maintain the auditorium building. This is followed by an averment that this erection and maintenance “amount to an appropriation of said land to private gain and to a purpose entirely foreign to that for which said land was so dedicated to the public by plaintiffs’ ancestor as aforesaid.” The relief asked is that the defendants be enjoined from erecting or constructing on said land so dedicated to the public the said building or any building except a market house in accordance with the terms and conditions of such dedication. This is followed by a prayer for general relief.

Erom this synopsis of the complaint it must be obvious that the main purpose of the pleader was to proceed in behalf of the plaintiffs as heirs of Byron Kilbourn having an interest in the dedicated land. This is an action which might be maintained by the dedicator or his heirs nnder a common-law dedication and in other cases where they retained an interest in the land. Gardiner v. Tisdale, 2 Wis. 153; Weisbrod v. C. & N. W. R. Co. 21 Wis. 602; Freedom v. Norris, 128 Ind. 377, 21 N. E. 869. Merely by virtue of owning two lots in this plat not abutting on the square in question the plaintiffs showed no special or peculiar interest in restraining the alleged public wrong. Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379; Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65. The plaintiffs have shown no right of action in themselves to restrain the alleged misuser, ’tmd, the action not having been brought in behalf of a class who might possess that right, it follows that the judgment of ■ the circuit court must he affirmed. We do not reach or pass upon any other matter found by the circuit court.

By the Gowrt. — Judgment affirmed.

Siebeckee, J., dissents as to the construction of the complaint.  