148 Wis. 636 | Wis. | 1912
Lead Opinion
The appeal of the city of Superior presents but one question not heretofore determined in the case of Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986, and that is: Must a property owner, in proceedings to grade a street under ch. 539, Laws of 1909 (sec. 959 — 30& to sec. 959 — 30j, Stats.), appear before the board of public works or the city council and make objections in order to entitle him to appeal pursuant to sec. 959 — 30g, Stats. ? We think not. There is nothing in the appeal statute that requires any appearance by the property owner at any stage of the proceedings in order to entitle him to appeal. It says:
“If the owner of any parcel of land affected by such determination of the council feels himself aggrieved thereby, he may within twenty days after the date of the first publication of such notice of final determination appeal therefrom to the circuit court.”
No conditions whatever are by the statute attached to the right to appeal, and the court can make none. Moreover, it is clear from the proceedings to be had that a property owner may not know until the council has made its final determination pursuant to subd. 8, sec. 959 — 30f, whether or not he is aggrieved. Said section provides that “the council may determine the amount to be paid by the real estate as benefits on account of such improvement of such street or alley, and the amount that shall be paid by the city at large or the ward funds or the wards in which such improvement is made.” Until the council makes such final determination the property owner cannot know what he is required to pay. The city or the wards may be required to pay all. It would be idle to require him to object before the objection could attach to any¿ thing determined, even provisionally. The cases cited by
On plaintiffs’ appeal two questions present themselves for determination: First, Do sec. 959 — 30, Stats. (Supp. 1906), and sec. 959 — 31, Stats. (1898), relating to the extension of the time of payment of the assessment, apply to improvements made under ch. 539, Laws of 1909 ? and, second, If so, could the plaintiffs withdraw their requests for an extension of the time of payment of the assessment after making an application therefor to the board of public works as provided by sec. 959 — 31, Stats. (1898) %
Oh. 539, Laws of 1909, in terms creates secs. 959 — 30a to 959 — 30j, Stats., inclusive. By such creation they are made a part of sec. 959 — 30, Stats. (Supp. 1906), being addenda thereto. The legislative intent is clear that ch. 539 was meant to become part and parcel of the subject of “Street Improvements” dealt with in secs. 959 — 30 to 959 — 34, Stats. These sections as they now stand include the new sections created. The language of sec. 959 — 30 (Supp. 1906) is broad in its scope and provides generally that whenever in any city the repaving of any avenue with a permanent paving having concrete foundation shall have been duly authorized, the board of public works may determine that any owner of a lot that is asssessed may have the option to apply for an extension. It would be a forced construction to hold that the legislature did not intend the provisions of this section to apply to an improvement made under ch. 539, Laws of 1909, when such chapter was in terms embodied into the statute of which
The answer to the second question presented is not so clear. There is much force in the argument that the city had in nowise changed its relation to the subject matter when the withdrawals were attempted to be made. The contractor was not interested in the question of the right of withdrawal, for he had assumed the contract with the express proviso that any or all of the lotowners might extend the time of payment. If they did so extend, he received the bonds; if not, the cash when collected. He had agreed to take either. So it narrows down to a question between the city and the' lotowner.. The trial court found that plaintiffs did not, at the time they made application for an extension, know that their property-had paid its full share of street ’ improvements for paving, and they made prompt efforts to withdraw their application as soon as they learned the true facts. The remedy by appeal being exclusive, the court will grant either equitable or legal relief, or both, as each case may require. And ordinarily equity will relieve against a mere mistake of fact where no-laches is shown and the other party has not materially changed his position relative to the subject matter. We have-here, however, a case where a city is engaged in making important street improvements, in which many proceedings must be timely had by it. The statute (sec. 959 — 31) gives the-option to the property owner to have the time of the payment of his assessment extended upon the express condition, to be-embodied in his application as an agreement, that “in consideration of the privilege granted by such resolution [of extension] the applicant will make no objection to any want of power, illegality or irregularity in regard to the assessment, against his property.” It was within the province of the legislature to grant or withhold the privilege of such an option-
But it is said the city took no action upon the applications before the requests for withdrawal were made. No action by the city was necessary. It had no power to accept or reject the applications at its own pleasure. It had to accept. When properly made, the applications became contracts or agree
It is deemed that the privilege of extension is an adequate consideration for the waiver required by the statute, and it expressly makes such privilege the consideration, for it says: “In consideration of the privilege granted by such resolution the applicant will make no objection,” etc. The doctrine of estoppel, therefore, is not applicable to the case. The express waiver provided for by Statute controls. A waiver has properly been defined to be “the intentional relinquishment of a known right.” Monroe W. W. Co. v. Monroe, 110 Wis. 11, 85 N. W. 685; Swedish Am. Nat. Bank v. Koebernick, 136 Wis. 473, 479, 117 N. W. 1020. When the plaintiffs presented their applications to the city for an extension they intentionally and voluntarily relinquished the known right to contest the validity of the assessment either because of want of power to make it or because of any irregularity or illegality therein, after having been given a reasonable time in which to investigate their rights relative thereto and ascertain what the facts were upon which they might in whole or in part defeat the assessment. It is true they did not at that time know the facts relative to their ability to successfully contest the assessment, but they did know they had a right to contest it, and they did know that they waived such right by applying for an extension. So they intentionally - relinquished a known right, though in ignorance of the quantum of proof they could produce to sustain it. They cannot now, however, successfully plead their failure to investigate and
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). I think tbe judgment should be reversed on tbe appeal of tbe plaintiffs Baicrison, Gra/nt, and Landgren. I am unable to convince myself that tbey received any consideration for signing tbe request which tbey made. Before signing tbey owed tbe city nothing presently or prospectively and were under no obligation to pay any part of tbe unlawful assessment. It would seem that tbe only consideration which tbey received was in tbe shape of a good-sized obligation to pay something which tbey neither owed nor should be called upon to pay. This does not comport with my idea of a consideration. To be sure, tbe latter might consist of a detriment or loss to tbe city, but the city is wholly unable to show where it is any worse off in a single particular because of the request. The request was made in ignorance of the fact that the property of the plaintiffs was exempt from the special assessment made, and was promptly withdrawn when discovered. It seems to me that to make a party the victim of an innocent and excusable mistake which has harmed no one, and to compel him to pay a very considerable sum of money which he did not owe, because of it, to one who is admittedly neither legally nor equitably entitled thereto and whose only right is based on the fact that a mistake was made, is a rather harsh rule. It is proper enough to hold parties responsible for their mistakes when others have thereby been misled to their detriment. But I do not think we should be so intolerant of them as to permit others to be enriched because of them, where tbey were wholly unaffected by what was mistakenly done.
