Goodrich v. City of Milwaukee

24 Wis. 422 | Wis. | 1869

Dixon, C. J.

By the statute “ Of Uses and Trusts” (ch. 84, R. S.), passive trusts are abolished, but active trusts are not. By passive trusts, as here used, we mean those which are express, or created by the words of some deed or other instrument in writing, and not those trusts arising or resulting by implication of law, which, in most instances, still continue to exist, and which may, in tlie broadest sense, be denominated passive. Every express passive trust is abolished, and the deed or instrument by which it is created, or attempted to be, takes effect as a conveyance directly to the cestui que trust, in whom the legal title vests, and the trustee acquires no estate or interest whatsoever. Such must be held to be the operation of sections three and five of the statute. A conveyance of land from A. to B., to the use of or in trust for C., the trustee having no active duties to perform, constitutes a passive trust, and the trustee takes no title, but the same vests immediately and absolutely in the cestui que trust to the extent of the estate granted.

But that active trusts, of whatever kind, provided they be such as were lawful before the passage of the statute, are not abolished by it, nor intended to be, but, subject to the limitations as to time prescribed by the title of which the chapter is a part, may still be created, is manifest by the fifth subdivision of the eleventh section, as also by section six. As was observed in the opinion of this court in White v. Fitzgerald, 19 Wis. 487, subdivision five of section eleven is not found in the statute of New York, and first appeared in this state in the Revised Statutes of 1849. The addition of that subdivision to the four which precede it, and which are found in the statute of New York, establishes, as it was undoubtedly intended to do, a policy in this state upon the subject of active trusts entirely different from that which prevails in the state of New York. It shows very clearly that no active trusts were intended to be affected or abolished by any provision of the statute, though the language of some of its sections, literally construed, may be broad enough to include them; but that any such trust may still be created when, in the language of subdivision five, “it is fully expressed and clearly defined upon the face of the instrument creating it.”

Upon full consideration, we are satisfied that such is the true construction of the statute. It is certainly the only one by which its various provisions can be harmonized, and effect be given to each. It is sanctioned by White v. Fitzgerald, above cited, though not by Marvin v. Titsworth, 10 Wis. 320. In the latter case, the New York decisions were followed, and the meaning and effect of subdivision five was overlooked. That case was erroneously decided, and must be overruled.

The declaration of trust in this case, contained in the deed of the land made to the plaintiff, is as follows: “ To have and to hold the said premises and appurtenances to the said party of the second part, his heirs and assigns, in trust for the sole use, benefit and behoof of the said Mary H. Belcher, her heirs and assigns forever, that is to say, in trust for the said party of the second part to bargain, sell and convey, and to lease and demise, the said premises, and to mortgage the same, as he may be directed by the said Mary EL in writing, and to pay over to the said Mary EL, taking her individual receipt therefor, all moneys arising or to arise from the said property, whether from the rents or from the sale or mortgaging thereof, or to re-invest the same, as the said Mary H. may, from time to time, direct in writing.” There can be no doubt that this was the creation of an active trust, and, as such, valid under the statute. The plaintiff, therefore, being the trustee of an express trust, and clothed with the legal title, is authorized to sue in his own name, without joining his cestui gue trust. R. S. ch. 122, § 14.

The next question we are to consider is, as to the construction to be put upon the ordinance of March 3d, 1853, and the amendatory ordinance of December 16th, 1861, fixing, among, others, the grade of East Water street. Was the grade of that part of East Water street extending from Erie street to the river, being a distance of one hundred and twenty feet, or thereabout, along the line of tlie block lying between Erie street and river, fixed by those ordinances % The mode of establishing the grade was by fixing it at the points of intersection of the various streets running into or crossing East W ater street. Between those points of intersection the grade continued in a straight line from one to the other.

The ordinance of 1858 commenced by fixing the grade, at the middle of Erie street, at five feet above the base line or level established for determining the grades of the various streets throughout the city, and thence proceeded up the street, fixing the grade at the points of intersection of the several cross streets, as far as Wiscon sin street. Between Erie street and the river or dock line, where East Water street terminates in that direction, no grade was expressly fixed by the ordinance or the amendment. The premises of the plaintiff are situated upon that part of East Water street. The practical construction put upon the ordinance and the amendment, both by the city authorities and the owners of lots, was, that the grade of that part of the street was fixed — that, from Erie street to the river, it was continued the same as between Erie and Chicago streets, the next intersecting street above Erie. It does not appear that, under the ordinance of 1853, any filling was necessary, but the owners of the lots, including the premises now owned by the plaintiff, were required by the city, and under the direction of its officers, to pave the street with cobble stones, as upon a grade established by that ordinance, and the same was accordingly paved at the expense of the lot owners. And again, after the passage of the ordinance of 1861, amending that of 1853, by raising the grade of East Water street, so that,' at the points of its intersection with Erie and Chicago streets, it was nine feet above the base line, instead of five feet, as theretofore established, the same things took place. The lot owners, the plaintiff included, were required by the city authorities to fill to the new grade, and to put down the Nicholson pavement, and the same were done at their expense. Under these circumstances, the claim now put forth on the part of the city, that no grade of that part of the street was fixed by the ordinance of 1853, or the amendatory ordinance of 1861, to say the least of it, comes with very bad grace. It is true that there was nothing in the ordinances going expressly to the point; but they contained nothing from which a contrary intention could be gathered. On the other hand, when all the circumstances are taken into consideration, the construction which was given to the ordinances by the city itself seems to have been very reasonable and just, and no doubt that which was intended. For example, in 1861, when there was an elevation in the grade of four feet, it cannot be supposed that it was the intention to stop short at the middle of Erie street, and thence descend abruptly to the old grade, and so on to the river. The construction which the ordinances received in each case seems to have been correct; but, if not, it is clearly too late for the city to question its correctness.

Having thus determined that the part of East Water street in controversy was within the ordinances of 1853 and 1861, the next question which arises is as to the effect of those ordinances, when considered with reference to the nature of the grade established by them. Was the grade a permanent one, or merely temporary ? Section sixteen of chapter 10 of the charter passed in 1852' (Laws of 1852, ch. 56, p. 108), provided that the common council should, at its first meeting, appoint five commissioners, one from each ward, who, with the assistance of the city surveyor, or such other assistant surveyors as the council might appoint, should cause a new and accurate survey to be made of the lines and boundaries of all the streets, alleys, sidewalks, public grounds, wharves and blocks, and should cause to be established such permanent land-marks as they might deem necessary, and should cause an accurate plat or plats thereof to be made and certified to by the said surveyor and commissioners, which should be filed in the office of the city surveyor, and a copy thereof should be recorded in the office of the register of deeds of Milwaukee county. Section seventeen enacted that the survey and land-marks so made and established should be prima facie evidence of the lines and boundaries of all streets, alleys, sidewalks, public grounds, wharves and blocks, in all cases in which they should be drawn in controversy, in all courts of this state. Section eighteen declared that, as soon as practicable after the completion of such survey, the common council should cause to be established, under the direction of the city surveyor, the grade of all streets, sidewalks and alleys in said city, and should cause accurate profiles thereof to be made, one of which should be filed in the office of the register of deeds of Milwaukee county; and should the grade so established be at any time thereafter altered, all damages, costs and charges arising therefrom should be paid by the city to the owner of any lot or parcel of land, or tenement, which anight be affected or injured in consequence of the alteration of such grade. It is under this section that the present action is brought to. recover damages sustained by the plaintiff by reason of a change of the grade at the dock line, and adjoining the premises of the plaintiff, made in pursuance of an ordinance passed on the 2d day of October, 1866. The grade was raised at that point to seventeen feet above the base line, instead of nine as theretofore established. Upon this state of case the question is, whether the grade established by the previous ordinances, to which the lot owners made no opposition, is to be regarded as permanent, or only temporary. In behalf of the city, it is claimed that it was only temporary; and, in support of this claim, it is insisted that no action was ever taken by the common council to cause surveys to be made and permanent grades to be established, as required by the provisions of tlie charter above set forth. According to the position of counsel in argument for the city, even the ordinance of 1866 does not establish any permanent grade. It was a special ordinance for that part of East Water street in controversy, and for a portion only of Ferry street, on the opposite side' of the river. On the other side it is argued, even though the common council may never have taken any formal steps toward completing the surveys and causing the grade of the streets, sidewalks and alleys to be permanently established, yet the city ought not to be permitted, to the great detriment and injury of the proprietors of adjoining lots, to take advantage of its own neglect or failure to perform a duty so plainly imposed upon it. We are inclined to the opinion that this position is well taken, and should be sustained. The duty imposed upon the common council in this respect by the charter of 1852 was clear and specific. The statute was imperative. It imposed a present duty, and not one the performance of which might be postponed for years. The common council was to appoint the commissioners at its first meeting under the charter; and, as soon as practicable after the completion of the survey, the grade of the streets, sidewalks and alleys was to be established under the direction of the city surveyor. The words “as soon as practicable,” may imply some discretion as to time on the part of the common council. They mean, as soon as it was a convenient or proper time for the city surveyor to perform the work. He was not to be required to do it at an inclement or unsuitable season of the year, as, for example, in the winter season, when such work might not be conveniently done. But, aside from such causes for delay as these, the work was to be done and the grade established at once. Such was the evident meaning of the statute ; and when the purpose of the requirement is considered, it seems very obvious that the city cannot be allowed to avail itself of its own wrong, or of tlie failure of the common conncil to perform its duty. The great damage so often caused to private property in our large towns and cities by changes in the grade of streets in front of it, either by the digging down or the filling up of such streets for the greater convenience of the public, was well known. It was well known that such changes were frequently attended with a loss of almost the entire value of the adjoining property ; that estates were ruined, and buildings and improvements costing large sums of money were rendered worthless ; and yet, that the law afforded no means of redress or compensation to the owners. It was to prevent, so far as might'be consistently with the convenience and welfare of the public, such disastrous consequences as these to the property of individuals, that the provisions in question were introduced into the charter. By the early establishment of the grade of the streets, the owners of property upon them could conform to it in the erection of their buildings, and in making other expensive and permanent improvements ; and if the grade was afterward changed, they were assured that it would not be done by sacrificing their property, but that compensation would be made by the public, for whose benefit and convenience the change was required, and upon whom the loss ought, in justice and equity, to fall. With this understanding of the object of the statute, that it was a requirement wisely and cautiously interposed for the protection of private rights and private property, we do not see how the city can for a moment stand upon the plea that such duty has never yet been performed.

But there is still another ground on which the answer of the city in this behalf must be rejected. The ordinance of 1853, and the amendatory ordinance of 1861, both recited that they were passed for the purpose of permanently establishing the grade of the street in question. They indicate, on their very face, that it was the intention of the common council passing them to comply, as far as it-was possible by ordinances in that form, with the requirements of the charter of which we have been speaking. If the common council. did so intend, as we must presume from the language of the ordinances, and if third parties, acting upon the intention thus expressed, have so conducted themselves that they would suffer great injury by the opposite construction, ought not the city to be estopped, even though the ordinances may be insufficient as a complete performance of the duty imposed by the charter % It seems to us, as well on this ground as on that above stated, that the doctrine of estoppel in pais, if applicable at all to public corporations, as we know it is, should certainly be applied in a case like this. It seems to us, furthermore, that the partial performance, indicated by these ordinances, of the duty imposed upon the common council, should not be defeated or avoided on the part of the city by an attempt to show that the whole duty has not been performed. The city cannot, under the circumstances, make the objection.

The next and last question to be examined is as to the effect of section five of chapter 117, Laws of 1858, amending the charter of the city. In Goodall v. Milwaukee, 5 Wis. 32, an action like the present to recover damages was sustained upon the provisions of an ordinance of the city promising indemnity for injuries caused to private property by reason of the alteration of the grade of a street, as fixed by that ordinance. In Pearce v. Milwaukee, 18 Wis. 428, a similar action was sustained upon the provisions of the charter on which this action was brought. In the latter case, it was not suggested that the action would not lie, or that any other remedy was provided by statute. It is now contended, however, that a specific remedy is given by chapter 117, above referred to. A recital of the provisions of that act is unnecessary. It is enough to say that it contains nothing inconsistent with, tbe idea that tlie common law remedy, by action arising npon the provisions of the charter, is still to continue. No intention is manifested to abrogate or take away such remedy. Repeals by implication are not favored in the law, especially with regard to previously existing remedies, whether by statute or common law, as to which it is held that they will not be taken away without a negative expressed or clearly implied. The act contains no express or negative words, is in terms applicable to streets, alleys, etc., which are to be graded for the first time, and the remedy given by it cannot be extended so as to cut off the right of action at law which existed in cases of this nature before the act was passed.

Por these reasons, the judgment of the court below must be reversed, and the cause remanded for a new trial according to law. ;

By the Court. — So ordered.