68 Wis. 241 | Wis. | 1887
The common council of the city bad the power, when properly invoked, to open, widen, straighten, and vacate streets and alleys and establish and alter the grades thereof.” Charter, subd. 32, sec. 3, tit. IY, ch. 313, Laws of 1876, p. 733. There is no claim, and the complaint negatives any ground for claiming, that the alleged improvement was the taking of the plaintiff’s private property,— the land in question,— for a public street by any proceedings for condemnation as prescribed by the charter. Secs. 1-24, tit. Y. The common council may cause any street to be graded, paved, macadamized, or graveled, and order the expense of such improvements to be ascertained, and the costs of such work or improvement to be levied and charged against the lots or real estate fronting or abutting on such street, to the amount which such improvement shall be adjudged by the common 'council to benefit such lots; and when a change in the grade of any street is ordered, the expense of cutting or filling incurred by such change of grade shall be chargeable to and paid by special assessment-on the lots or property fronting or abutting on the street of which the grade shall be so changed. Charter, sec. 1, tit. YI, ch. 180, Laws of 1880. Whenever the common council shall deem it necessary to grade or otherwise improve any street not otherwise provided for, it shall cause to be made an estimate of the costs of such work, and shall put the same on file in its .office; and such estimate shall be open to inspection of any party interested. Sec. 5, Id. No such work chargeable to lots or parcels of land fronting or abutting on the same, except repairs, etc., shall be ordered unless the requisite petition therefor shall be first presented to the common council, or unless, in the absence of such petition, the requisite resolution of the common council ordering such work, after having laid over for one meeting, shall receive the votes of three fourths of the aldermen elected, to be taken by yeas and nays duly en
The complaint alleges, in effect, that the common council claim and pretend that such work, or the cost thereof, is chargeable to the plaintiff’s said premises, as fronting the same, and that the said work is such that if it were lawfully done it would be chargeable to said plaintiff’s lot. It then negatives the claim that said work is of any different kind or character than above mentioned; also the making or presenting of such or any petition; also such passage or any passage of any such resolution; also the taking of any such vote. The complaint also alleges affirmatively that the defendant wrongfully and unlawfully did the several acts complained of. Ve must hold the allegations of the complaint sufficient to bring the case within the decisions of Crossett v. Janesville, 28 Wis. 420; Dore v. Milwaukee, 42 Wis. 108. It is true the charter expressly prohibited the improvement made in the Orossett Case in the absence of the requisite recommendation in writing. The same may be fairly implied, as to the particular work in question, from the provisions of the Racine charter referred to. It is to be remembered that the common council only had such powers as were expressly granted by statute or necessarily
By the Oourt.— The order of the circuit court is affirmed.
