155 Wis. 90 | Wis. | 1913
The complaint purports to state one cause of action. Defendant’s counsel has discovered therein five ineffective attempts to state five causes of action and has interposed a combination of answer and five demurrers in one instrument. This mode of pleading- is irregular and should have been stricken out by the trial court, but that court proceeded to rule on the demurrers and we do also. The only pleading on the part of the defendant is either a demurrer or an answer, not both. Sec. 2648, Stats. If, as claimed by respondent’s counsel, the complaint states but one cause of action, the nature of the action should be determined by the predominant facts stated, and so construing the complaint the action would be one to recover damages for an unlawful change of grade and to recoven’ money paid upon an illegal assessment certificate issued thereon. This is, under present statutes, in effect an action for a reassessment, and based upon such cause of action there could be no recovery for private property taken for public use without compensation, no recovery for incumbering or. blocking the streets by contractors, and only a recovery of the lawful measure of damages appropriate to such cases. It is therefore well to consider the complaint also from the viewpoint of appellant’s counsel.
A demurrer will not lie to mere surplusage not attempted to be set forth as a separate cause of action, nor to a sentence, nor to a fragment of a cause of action. But the plaintiff can
It is impossible to tell with any certainty from the corm plaint bn which side of Ferry street this property lies. Defendant’s brief states that the property is on the east side of Ferry street and its counsel so understand the complaint. 'The respondent’s brief says that-the property is on the northwest corner of South Water street and Ferry street, which would bring it on the west side of Ferry street, and respondent’s counsel so understand the complaint. The complaint avers that the premises abut on Ferry street on the east, but whether that is on the east of the street or on the east of the premises is pretty hard to tell. Another averment of the complaint describing an area under the sidewalk enjoyed .by plaintiff prior to the last grading avers, “the east wall of ■said basement was built of solid stone to a depth of eight (8) to ten (10) feet from the street level, said wall being at the west edge of said street as then laid out.” If plaintiff’s premises were on the east side of' the street, this would carry us clear across the street to the west side .and the area ex: cavation would not be wholly under the sidewalk, so that
“No petition was made for tbe purpose of condemning plaintiff’s land or no resolution of tbe common council was bad in tbe matter, as by statute made and provided, and in other respects tbe law was not followed in the matter of taking this land, and therefore such taking was absolutely unlawful and illegal and damaged tbe plaintiff in tbe sum of five hundred dollars ($500).”
This presents very significant indications of a rather clumsy attempt to state a cause of action for an unlawful taking of private property of tbe plaintiff. If bis property abutted on tbe west side of tbe street and bis east area wall was at tbe west edge of tbe street as then laid out, tbe whole area was west of tbe west street line and was private property, yet plaintiff makes no such claim in bis brief. It would aid this alleged cause of action to bold that tbe property in question abutted on the west side of Ferry street, and we must give tbe complaint that construction if necessary to support a caus$ of action. We-think the complaint will bear that construction, and consequently that a cause of action is stated for faking, without resorting to condemnation proceedings or making compensation, tbe private property of tbe plaintiff which lay west of'tbe west line of tbe street. Whether
2. In support of another alleged cause of action, we find in the complaint averments tending to show that the plaintiff owns property abutting on Eerry street, and that the grade of that street had been fixed by ordinance and the street graded up to the line so fixed, and that thereafter and for the purpose Of making an approach to a-new bridge across the Milwaukee river, which river adjoins plaintiff’s property on the rforth, the common council by. ordinance introduced on April 13, 1908, and passed on June 22, 1908, changed the grade of that part of Eerry street upon which plaintiff’s property abutted, and thereafter the city graded Eerry street to this new or changed line, causing damage to the plaintiff. It is averred, apparently in order to invalidate said ordinance changing the grade, “that no petition was presented prior to the enactment of such ordinance signed by the residents of said city owning a majority of the feet in front of the lots upon said proposed- improvement.” No such petition is required by law. The provisions-of sec. 6, ch. VII, of the charter relate to a petition at a later stage of the proceedings, but the complaint contains no averments sufficient to show that the petition there mentioned was omitted, even
3. Tbe third attempted cause of action rests upon a detailed statement of a contract between tbe city and one Vogel made on December 4, 1908, for tbe building of a bascule bridge across tbe Milwaukee river, and another contract between tbe city and another person made on November 26, 1909, for tbe building of a concrete tunnel under said river. Each of these contracts prescribed a time for completion of tbe work and a per diem penalty for delay. Tbe contractors did not finish in time, but incumbered tbe street with tools, men, engines, sheds, wagons, and appliances for a long time, thus preventing plaintiff from using tbe street and tbe bridge and impairing or preventing access to bis premises, etc., and tbe city did not enforce tbe penalty in tbe contract or compel tbe contractors to complete tbe work, but permitted tbe delay. From tbis it appears that' tbe work cbntracted for was in pursuance of tbe public powers of tbe city and within its authority. Tbe alleged damages were caused by tbe contractors, not by tbe city. There is no sufficient averment of negligence on the part of tbe city, and tbe emission to enforce tbe penalty of tbe contract or to pompel the contractors to proceed is not actionable in the plaintiff’s behalf. Tbe city has a discretionary power in such matters. Tbe averment of tbe complaint in tbis particular is: “that said' department of public'works has not compelled said contractors to complete their several contracts within tbe time specified in tbe said contract, thereby allowing tbe nuisanco caused as above to continue for a longer time than was necessary; that tbe plaintiff suffered damages by reason of the breaches of tbe said contracts as hereinbefore set forth in an amount of not less than two thousand dollars ($2,000).”
Tbis fails to state any cause of action in favor of tbe plaintiff and against the city. Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; Sampson v. Boston, 161 Mass.
There being two good causes of action in the complaint, the demurrers were properly overruled.
By the Court. — Order affirmed.