51 Wis. 645 | Wis. | 1881
The board of supervisors, upon■>their appeal, insist that no mandatory injunction should have been granted requiring them to remove so much of the embankment as rests upon the plaintiff’s land outside of the limits of the highway. The reason urged is, that the court made an order granting the plaintiff a preliminary injunction to prevent them from extending their embankment upon the plaintiff’s land, before any work had been done, and that the plaintiff refused or neglected to render such order effectual by giving the bond required, and permitted the work to go on. It is said that the plaintiff is in
But the plaintiff filed his complaint before the work was done, asking that the defendants be restrained from doing it; and, the plaintiff having made out a case entitling him to the relief asked, we are of the opinion that he did mot forfeit his right to an injunction by failing to give the bond which would have entitled him to the preliminary one, and that the defendant acquired no rights because the work was done pendente lite. That the plaintiff was of sufficient means to have readily procured such bond, we do not think has any bearing on the case. By the commencement of his action in due time, the plaintiff gave the defendants notice that he did not waive any of hi's equitable or legal rights; and the defendants having gone on with the work after the commencement of the action, they did so at the risk of being compelled to remove their works from the plaintiff’s land, if, in the end, it was found they had no right to oecupy it with their works. Such notice having been given in a timely manner, the plaintiff was entitled to his mandatory injunction at the end of the litigation to compel the removal of so much of the embankment as had been unlawfully placed upon his land pending the litigation. State
The plaintiff, on his appeal, insists that he was entitled to further relief than was granted by the court. His claim is, that the defendants had no lawful authority to make the improvement in front of his land; that they were mere trespassers; and that the structure erected by them in the highway in front of his land was a private nuisance as to him, if not a public nuisance against the state; that he is entitled to have the nuisance abated and removed; and that the court should have so decided by its judgment. It is claimed, and the county court has so found, that the county board did the work under the authority conferred on them by ch. 51, Laws of 1878, and not otherwise; and the learned counsel for the plaintiff insists that such act is unconstitutional and void for various reasons set out in his brief. It seems that the making of this improvement in the highway at the place where the work was finally done, had been in contemplation for several years. In 1876 the legislature passed an act authorizing the county to do this work. See chapter 365, Laws of 1876. In 1877 another act was passed on the same subject (chapter 279, Laws of 1877); and in 1878 chapter 51 was passed, and the acts of 1876 and 1877 were repealed. The act of 1876 declared the road in question a county highway, and authorized and directed its improvement by the county board during the year 1876; and its seventh section provided that “ if, by improving said highway in the manner aforesaid, any damages be sustained by any person or persons owning lands adjoining such highway, at the place or portion of such highway being so improved according to the terms of the act,” then such damages should be ascertained in the manner provided by chapter 19 of the Revised Statues of
Section 2 of chapter 51, Laws of 1878, recites that, the county board of supervisors of the county of Milwaukee having declared and made the portion of Spring street road between the present westerly, limits of the city of Milwaukee and the westerly boundary line of the Calvary cemetery, in the town of Wauwatosa, a county highway, all acts and proceedings of the county board in that behalf are hereby legalized. Section 1 of the act requires the Chicago, Milwaukee & St. Paul Railway Company to erect an iron bridge over their track where it crosses the highway in question in the town of Wauwatosa, and prescribes the manner of constructing the same. The second section, after reciting and declaring as above stated, requires the county board to cause to be constructed, in 1878, a viaduct approach to said bridge from the eastwardly . end thereof, east 400 feet, and also to extend such viaduct still east-wardly 200 feet more, to be made of earth filling, to the present iron bridge over the Menomonee river. This filling is the only part of the work which encroaches on the plaintiff’s land. It also provides for a convenient earth approach from the west end of the railroad bridge, westward, and gives a description of how the viaduct and grade shall be constructed, and the grade thereof, and then further provides “ that the aforesaid portion of county highway shall thereafter, and so long as the
Section 3 provides for making plans and letting the work. Section & provides that the county board “shall, in 1878, levy a tax sufficient to pa.y the said county’s portion, hereinafter mentioned, of t7ie costs and damages of the aforesaid improvement, aud shall annually thereafter levy a tax sufficient to cover the expense and cost of repairing and maintaining said portion of county highway. Three-fourths of the expense of said work, and of cony doomages which may be recovered of the said county of Milwaukee by reason of such construction, shall be paid out of the county treasury; and one-quarter of the expense of such construction, and of all damages which may be sustained and recovered under this act by reason of such construction, shall be borne and paid by the property abutting on said Milwaukee and Blue Mound road, or Spring street road, and on either side thereof, from the westerly -limits of the city of Milwaukee, for such distance as the county board may determine is benefited by such improvement, and of not less than three miles westerly along said road; and such proportion of the costs and damages shall be distributed upon and assessed upon the various tracts of land so abutting on said road, by the said county board of supervisors, according to the relative benefit, in the judgment of said board, accruing to each such tract or piece or parcel of land by reason of the construction of such improvement.” The remainder of the section provides that such assessments may be collected in the same manner as general county taxes. Section 5 gives an appeal to the circuit court of Milwaukee county to any person who shall deem himself aggrieved by such assessment. Section 6 relates to the railway company, and requires it to complete the bridge over its tracks in a reasonable time, and to build the abutments thereof within sixty days after the county board shall let the contract for making the viaduct and other
The learned counsel for the plaintiff argues that this act is unconstitutional and void for several reasons. First, because it is a local bill and embraces more than one subject, and that subject is not expressed in the title. The title of the bill is, “ An act to provide for the improvement of the Blue Mound or Spring street road, county highway in Milwaukee county, and to repeal chapter 365 of the Laws of 1876, and chapter 279, Laws of 1877.” It is said that because it, first, provides for the erection of a bridge by the Chicago, Milwaukee & St. Paul Eailway Company; second, legalizes, or attempts to legalize the acts of the board of supervisors, and thereby creates a county highway; third, provides for the construction of a viaduct and turnpikes by the county board; fourth, provides for the assessment and collection of a special county tax to pay for three-fourths of the cost of the work; fifth, provides for a special assessment of benefits upon certain property sufficient to pay one-fourth of the cost of the improvement; sixth, provides for taking private property, and for opening and improving a highway, without providing a jury to ascertain the necessity of taking the same or the damages thereto or the value of the land taken; seventh, provides for an appeal from the assessment of benefits, and that on such appeal the circuit court shall not award a larger amount of damages than were awarded by the county board of supervisors; and eighth, repeals two other statutes,— the act is void because it contains more than one subject.
The title of the act, we think, sufficiently states the subject, as prescribed by section 18, art. IY of the constitution. The subject, and the only subject, of the act is the improvement by the county of Milwaukee of a certain highway situated in said county; and, so far as we are able to comprehend the act, there does not appear to be anything in it which does not strictly relate to that subject. It is said, that, because it re
It is urged that the act violates section 13 of article I of the constitution, in that it provides for taking private property for public use without just compensation. After reading the-act carefully, we see nothing in it which contemplates that the-county board should take or would be required to take any private property for the construction of its improvement. The-act provides for the improvement of a highway which had been in use as such for over forty years, and there is nothing-.
It is also claimed that the act is void because it violates subdivision 2, sec. 31, art. IY of the constitution, which prohibits the legislature from enacting any special or private law “ for laying out, opening or altering highways, except in cases of state roads extending into two or more counties, and military roads to aid in the construction of which lands may be granted by congress.” Admitting that the act in question is a special act, within the meaning of the provision of the constitution above quoted, we do not think this act violates the provision; because the act does not provide for either laying out, opening or altering a highway, within the meaning of such provision. The act pi’ovides for the improvement of a highway already laid out and opened, and which had been so laid out and opened for forty years. The altering of a highway, within the meaning of such constitutional provision, clearly means an alteration of its course, and not a change of its grade.
It is urged that the act violates the sixth subdivision of said section 31, art. IY, in that it provides for the assessment of a tax to pay the cost of the improvement, and fbr a special assessment upon certain lands, which are supposed to be bene-
But we think that fact does not make the county board, and those acting -under them, mere trespassers. The other parts, of the act, to which there are no constitutional objections, authorized the county board to do the work. Disregarding this void provision, they concluded to act under the law and make the improvement; and they are not to be treated as trespassers because they might be unable to enforce that part of the act to which there may be constitutional objections. When they
It would be clearly inequitable to permit this plaintiff to prevent the making of a greatly needed and most important public improvement of one of the great thoroughfares of the state, upon the plea that one of the provisions of the act under which the work is proposed to be done is void, when he is not affected by such void provision. As to what persons may take advantage of an unconstitutional act, or an unconstitutional provision in an act which is in other respects constitutional, is very fully and ably discussed by Chief Justice Shaw in Wellington and others, Petitioners, etc., 16 Pick., 87; and it is there held that an unconstitutional act, or provision in an act, is to be deemed void only against those persons whose rights are affected by the unconstitutional provision, and that a stranger cannot contest' it. Cooley on Const. Limitations lays down the same rule (page 163). In the case of Bridge and Turnpike Corporation v. County of
But, independent of the special act of 1878, we see no. reason why the county might not have made the improvement under the general laws in force at that time. It has been the policy of this state for many years to cast the burden, in part at least, upon the county, of making improvements upon its public highways, whenever the improvement is very expensive and the charges would be unduly onerous upon the town in which the highway is situated. See the statute upon the construction of bridges, section 115, ch. 19, R. S. 1858, as amended
The only other question is, whether the plaintiff is entitled to restrain the county officers from doing the work because the making of such improvement in the highway opposite his lands was a taking of his private property without making just compensation. We think the authorities settle the question, for this state at least, that, in the absence of any lawgiv-ing the owners of real estate adjoining a public street or highway a right to recover damages of the city, village, town or county in which the same is situate, on account of a change
This question was thoroughly discussed in the court of appeals in New York in the case of Radcliff’s Executors v. Mayor of Brooklyn, 4 N. Y., 195. It was held in thát case, that, “ when a municipal corporation, under a rightful authority contained in its charter, grades and levels a street, an action on the case will not lie by an adjoining owner, whose lands are not actually taken, for consequential damages to his premises, there being no want of care or skill in the execution of the work, and no provision in the charter for the payment of damages of that kind.” This decision has been followed by the courts of that state, and adopted by many of the other states. See Hill v. Boston, 122 Mass., 344; French v. Boston, 23 Alb. L. J., No. 14, p. 278. In Alexander v. Milwaukee, 16 Wis., 247, this court adopted the rule laid down in the case cited, and held generally that “ a municipal corporation, making an improvement solely for the benefit of the public, under ample authority granted by the legislature, and performing
Although the late Justice PaiNe had in some former decisions approved of the argument of the learned Justice SMITH in the case of Goodall v. Milwaukee, he says in this case, agreeing with the opinion written by the present chief justice: “ I concur in the decision of the court, that, by the weight of authority, a municipal corporation or public agent, acting in pursuance of law, and with due care and skill, is not responsible for consequential injuries to property which has not been actually taken for public use, occasioned by the construction of a public improvement;” and he says he makes this statement in this case for the reason that in the case of Weeks v. The City of Milwaukee, 10 Wis., 242, he approved “ the reasoning of Justice SMith in Goodall v. The City of Milwaukee, 5 Wis., 39, which would sustain the opposite doctrine.” This case has never been overruled, and, although it has been criti-cised, its soundness has not been questioned by this court, and its doctrine is sustained, as was said by the late learned Justice PaiNe, by the undoubted weight of authority. We think public policy demands that its principles should be firmly adhered to. Any other doctrine would greatly embarrass the public authorities in making those necessary changes which must be made in public places, streets and highways, required for the convenience and necessities of the rapidly increasing business of the country. This court having fairly disposed of this question after ample discussion, it is unnecessary to pursue the argument further. If the statute authorizing this
By the Court.— The judgment of tbe county court is affirmed on both appeals.