Cotzhausen v. Dick, 138 Wis. 127

138 Wis. 127 | Wis. | 1909

The following opinion was filed February 16, 1909:

Dodge, J.

Without discussing many other obstacles to-the entry of the judgment in this action upon the pleadings, it seems obvious that it must be reversed and the action against the county clerk dismissed by reason of laches and want of equity in the plaintiff. He instigated the drainage proceeding by signing the original petition. He was chargeable with constructive notice of the decision of certain commissioners-on appeal directing that tire drain be laid and requiring supervisors to proceed. This notice results from the statute-requiring the filing of the decision of the commissioners in a public office. He was, too, chargeable with knowledge of the subsequent proceedings of the town supervisors in laying-out and establishing the ditch and in making apportionment of the cost thereof to the parties benefited. He is alleged to have had notice in fact thereof and of the assessment upon-his property before the letting of the contract for the work and, of course, before the doing of the work by the contractor. Besides which, it appears by the answer and is therefore admitted that plaintiff’s lands are benefited to an amount at: least equal to the assessment. He had a right to an appeal from that assessment, provided by statute, but did not exercise it. He knowingly permitted the contractor to do the work in reliance on the special assessment as nnassailed. He malees no offer to pay any sum whatever. In such a situation a court of equity should not listen to the application of a property owner who has unprotestingly allowed others to expend money or labor upon an improvement which under some circumstances the authorities would have a right to make at his expense and from which he receives benefit, to excuse him from the payment of the portion assessed against his premises. Schintgen v. La Crosse, 101 Wis. 208, 214, 77 N. W. 167; Beaser v. Barber A. P. Co. 120 Wis. 599, 98 N. W. 525; Lawton v. Racine, 137 Wis. 593, 119 N. W. 331; New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592.

Eor the reasons stated, the judgment as against appellant must be reversed. The other defendant not having appealed, we express no opinion as to his rights.

By the Court. — Judgment as against appellant, William H. Dick, is reversed, and cause remanded with directions to dismiss the action as against him.

A motion for a rehearing was denied April 20, 1909.