122 Wis. 43 | Wis. | 1904
A preliminary question raised by an assignment of error in overruling defendant’s objection to any evidence under the complaint, based on the claim that there is no sufficient allegation of a presentation of this claim to the common council as required by the charter, challenges our attention to a series of statutes regulating the liability of municipal corporations and the method of enforcement of that liability; also the decisions under those statutes, by which are brought into complication with them certain statutes requiring notice to one claimed to be liable for certain torts, whether individual or public corporation. Much confusion seems to exist in the brief of appellant’s counsel, arising out of imperfect analysis of the functions of these various statutes, and out of certain supposed analogies, which, upon examination, will be found not to exist. The charter of the city of Hudson contains merely the provision that no action in tort shall be maintained against the city of Hudson unless a statement in writing, signed by the person injured, of the wrong and circumstances thereof and amount of damages claimed
Among the cases cited by counsel are some of those dealing with the requirement of sec. 1339, Stats. 1898, requiring for the maintenance of actions arising under that section that notice within a specified time be given to the municipality sought to be charged. Under this section and similar charter provisions it has always been held that compliance with that requirement is a fact essential to the existence of any right to damages whatever; that such a right, having no existence at common law, but depending on the statute for its creation, is also dependent upon the performance of all the statutory steps required. This on the principle that the legislature, in granting a new right, was presumed to impose, as a condition precedent to the efficacy of that grant, all the steps prescribed (Daniels v. Racine, 98 Wis. 649, 74 N. W. 553; McKeague v. Green Bay, 106 Wis. 577, 82 N. W. 708); hence that the complaint was obnoxious to general demurrer which failed to allege the giving of such notice. Later a policy was
But there is another class of enactments confined to municipal corporations requiring generally as a condition to suit against them upon certain rights of action the presentation of the claim to the corporation itself before action can be brought. These provisions, many of which are contained In special charters, vary, but apparently fall into two general classes: First, that which is illustrated by the general charter law (secs. 925 — 58 to 925 — 60, Stats. 1898), where not only is a presentation required, but it is provided that disallowance shall be final and conclusive and a complete bar to any action brought in the ordinary form; preserving, however, a method of reaching the courts by appeal from the disallowance. The other class includes those provisions which are more similar to sec. 824, Stats. 1898, which from early times has provided with reference to towns that no suit should be brought until the claim had been presented to the town board of audit, but contained no prohibition against suing the town in the ordinary form after such presentation.
As to the first class, the court at first, in Sheel v. Appleton, 49 Wis. 125, 5 N. W. 27, followed by Benton v. Milwaukee, 50 Wis. 368, 7 N. W. 241, held that such statutes merely postponed the right of action until the doing of the event, and therefore the failure of compliance was mere matter of abatement, or, as was said in the first of those cases, mere in
Thus we are brought to the remaining class of statutory provisions, which, while not attempting to take away the jurisdiction of the court to entertain suits in ordinary form against municipalities, do provide that certain steps shall be taken before suit shall be brought — usually a presentation to the municipality, sometimes a delay of a reasonable time thereafter. These, as has been said, were enacted for the purpose of giving to such municipalities an opportunity to adjust before suits are brought. It is in this category that we must locate the provision of the charter of the city of Hudson, though that contains one additional element, namely, that the presentation must be made within ninety days after the happening of the tort. Such a provision, to wit, sec. 824, Stats. 1898, was first discussed in Jaquish v. Ithaca, 36 Wis. 108, 114, which was an action for injuries from a defective highway, created by statute, and it was held that the failure to present to the town board of audit was mere matter in abatement, and therefore could not be raised upon appeal for the first time, and must have been taken advantage of by plea in abatement, or possibly by motion for a nonsuit on the trial. It must be noted, however, that this ruling was responsive to the appellant’s contention that the statute was only one of postponement and the suit was premature. No contention
. But the cause of action bere sued on is not of that class. If any is stated, it is one which arises under the rules of the common law. It is the commission of a trespass by the defendant city, acting through its officers. Hence we meet again the same distinction with which the court was concerned in considering the effect of ch. 304, Laws of 1897, and no reason is apparent why that distinction should not result in the same conclusion as to the legislative purpose, namely, that with reference to the cause of action which the legislature does not confer by its own act there is no necessary or reasonable inference that by such enactments as that now under consideration it was intended to import into the cause of action itself the taking of the prescribed steps by way of presentation to the common council. If the city committed a trespass upon the lands of the plaintiffs, the common law gave them a right, as against that city, to recover damages in the ordinary judicial tribunals. The legislature, by providing that before pursuing their remedy in those tribunals they shall give to the municipality an opportunity to settle or pay without litigation, cannot be presumed to have gone further than to merely postpone their right to commence that suit until the required act is done by them. This may be called limitation of actions, but, so far as it merely postpones the commencement of the' suit, it is strictly matter in-abatement. Lombard v. McMillan, 95 Wis. 627, 634, 70 N. W. 673. This conclusion as to common-law rights of action has the support of Bigelow v. Washburn, 98 Wis. 553, 556, 74 N. W. 362; Davis v. Appleton, 109 Wis. 580, 85 N. W. 515; and O'Connor v. Fond du Lac, 109 Wis. 253, 85 N. W. 327, and seems to be without antagonism from any decided case.
From the foregoing the deduction is, of course, obvious that any failure of the complaint to allege that the plaintiffs’
The next general contention of the appellant, which is involved, in more than one of the assignments of error, is that the facts, whether as alleged in the complaint or as proved upon the trial, do not result in liability of-the city, for the reason, as broadly stated by counsel, that putting earth on plaintiffs’ land was an act beyond the lawful power of the city, and therefore one which it could not do in its corporate capacity. Both allegation and proof are undisputed that the council ordered Third street graded to established grade by the street commissioner, within whose charter functions such work fell; that he did that work so as to bring the surface of the street to grade for its full width, whereby, of course, the foot of the grade necessarily extended onto adjoining premises in absence of any retaining wall or other precaution. It
A contention that even the commissioner’s general authority did not extend to grading the surface of the street to its
Error is assigned upon the admission of evidence as to the cost of removing from the land all soil cast thereon by the city and building a retaining wall to uphold the street to its full width, with the argument that these are not proper elements of plaintiffs’ damage. An examination of the record, however, discloses that the court with great care, and very industriously, impressed upon the jury that this proof was admitted merely as a limitation of damages, and not as establishing any elements thereof. Proof was offered and admitted of the diminished value of plaintiffs’ premises by reason of the trespass, and the court instructed them that such was the measure of plaintiffs’ damage, but that, if they could remove the earth and erect a retaining wall for a less sum than they found such depreciation to be, they must limit their verdict to the lesser amount, and, on the other hand, if the depreciation of value was less than the cost of the retaining wall and the removal of the earth, 1¿hey must confine themselves to the former. Clearly, this evidence, accompanied by such an instruction, instead of being prejudicial, was helpful to the defendant, for the evidence tended to establish a depreciation of the lots largely in excess of the cost of the retaining wall and of the amount finally allowed by the- jury.
While not demanded by any specific assignment of error,
By the Court. — Judgment affirmed