Bekkedahl v. Village of Westby

140 Wis. 230 | Wis. | 1909

KeewiN, J.

The substance of the complaint is set out in the statement of facts. The principal charge is that defendants are about to interfere with a part of a public street and that the village board is acting under a petition in so doing. There are no allegations in the complaint going to show that all tbe steps required by law were not taken in tbe proceeding to make tbe improvement. Tbe village having tbe right to improve tbe street, and it proceeding on petition to do so, it must be presumed that it is acting lawfully in tbe absence of any allegation to tbe contrary. Subd. 11, sec. 893, Stats. (1898), authorizes villages “to lay out, open, change, widen or extend roads, streets, lanes, alleys, . . . and to grade, improve, repair or discontinue tbe same or any part thereof; . . . to make, alter, widen or otherwise improve, keep in repair, vacate or discontinue sidewalks and crosswalks as provided in this act.” And sec. 905 provides tbe mode of procedure. There is nothing in tbe complaint showing or tend-' ing to show that these statutory provisions have been violated or that the defendants are not proceeding in accordance with them. The acts to be done under tbe contract with defendant Olson are to be done within tbe limits of tbe street. Tbe general power conferred by law on the village includes tbe power ,to determine the width of tbe traveled track. Elliott, Roads & S. § 451; State v. Morristown, S3 N. J. Law, 57; Benson v. Waukesha, 74 Wis. 31, 41 N. W. 1017; McCullough v. Campbellsport, 123 Wis. 334, 101 N. W. 709; Damkoehler v. Milwaukee, 124 Wis. 144, 101 N. W. 706.

Stress is placed upon tbe allegations of tbe complaint to tbe effect that tbe village board “intend to, and threaten to, at once after tbe completion of said curb and gutter, direct and compel plaintiff to build a six-foot cement sidewalk north of said curb and compel him to place tbe same inside of and north of tbe present and true street line and upon bis residence lot, and that in order to so build tbe same plaintiff will be deprived, without due process of law and without compensation, of a strip of land six feet wide and about 100 feet long.” Tbe plain inference from tbe pleading is that if tbe plaintiff is compelled to build tbe walk it will be under legal procedure regularly instituted and carried on. He cannot be compelled to build otherwise, and there is no allegation that defendants intend to forcibly or otherwise build or en-. ter upon his premises aghinst his will. The allegation to' the effect that, in order to build, the plaintiff will be deprived of his property without compensation and without due process of law, is without force, because it is plain from the facts pleaded that plaintiff cannot be compelled to build and submit to a taking of his property without compensation, and that defendants do not intend forcibly to interfere.

But it seems wholly unnecessary to discuss the question. The complaint is barren of facts sufficient to entitle the plaintiff to equitable relief, and therefore the demurrer waa properly sustained.

By the Gourt. — The order appealed from is affirmed.