121 Wis. 634 | Wis. | 1904
The proceedings in question were in pursuance of ch. 54, -Stats. 1898, entitled “Town Drains,” which authorizes the draining of “marsh, swamp or overflowed lands.” The lands affected by the drain were determined by the supervisors to be a marsh, and were located in two adjoining quarter sections in the defendant town. The plaintiff owned 120 acres thereof, and three other persons respectively owned portions of the other 200 acres. It appears that prior to such proceedings there had been an old ditch, and the proceedings were, in part at least, to widen and deepen the old ditch. There is no claim that the proceedings were not conducted in accordance with the several provisions of the chapter mentioned. The principal contention is that the proceedings were void for failure to file in the register’s office “a notice of the pendency of such application,” as prescribed in sec. 3187&, Stats. 1898. Counsel is certainly correct if that section is applicable, for the ■section declares that “neglect to comply with” the provisions •of that section “shall render all proceedings based upon such application void.” Counsel contends that it-is applicable, because it requires “every person who makes an application to any court, county board, common council, village board, ■or town board, for laying out, widening, extending, or vacating any street, alley, water channel, park, highway, or other public place,” to file such notice of lis pendens; and that
Nevertheless, counsel for the appellant contends that such an application, whether it results in taking land under the power of eminent domain or merely calls into operation the police power, is a proceeding affecting the lands relative to which the application operates, and that one object of the section is to protect subsequent purchasers or incumbrancers. It declares that “no final order, judgment or decree or final resolution or order taking or affecting such land, based upon any application therefor, shall have any effect, or be notice to any subsequent purchaser or incumbrancer, unless” _ such notice of lis pendens is filed. Id. Counsel seem to rely upon Svennes v. West Salem, 114 Wis. 650, 91 N. W. 121, where
Another question discussed more particularly on the oral argument was the constitutionality of this proceeding, called forth by the contention of the respondent’s counsel that this was not a taking’ under the power of eminent domain, because the construction of the drain was for a merely private use. Such contention is undoubtedly based upon certain statements contained in the opinion of Mr. Justice Oetoií in the case of Donnelly v. Decker, 58 Wis. 461, 468, 17 N. W. 389, 391. It is there, among other things,-said, in effect, “that such ditching and draining are for no public use whatever in the legal meaning of the term;” that “the primary object is solely to restore such lands to a proper condition for tillage and agriculture by the several owners, and for
“The declared purpose of the law in question is to promote the public health and welfare by executing a system of drainage. That is the main purpose and object of the law.” State ex rel. Baltzell v. Stewart, 74 Wis. 620, 626, 43 N. W. 947.
Under the same section of the statute, and in an opinion by LyoN, O. I., it was held by this court that:
“The town supervisors, before proceeding to lay out and establish a ditch, must determine that in their judgment it is demanded by, or will conduce to, the public health or welfare. Such a determination is essential to their jurisdiction, and unless it appears on the face of their proceedings their order laying out and establishing the ditch is void.” State ex rel. Witte v. Curtis, 86 Wis. 140, 56 N. W. 475.
In the case at bar the supervisors met pursuant to notice ten days before the time fixed for laying out such drain, and
What has been said about the case of Donnelly v. Decker, supra, is not by way of criticising the decision in that case, but merely to correct certain misleading remarks of the learned justice who wrote the opinion in that case. In that case he quotes from Cooley this language:
“Similar considerations apply in the case of drainage laws, which are enacted in order to relieve swamps, marshes, and •other low lands of the excessive waters which detract from their value for occupation and cultivation, and perhaps render them worthless for use, and are likely at the same time to diffuse through the neighborhood a dangerous nuisance. If these may be drained at the expense of the owner by special tax, there can be no doubt of the right of the state to make it his duty to drain them as a matter of police regulation, the state coming forward to perform the duty at his expense in case of its not being suitably or expeditiously performed.” Donnelly v. Decker, 58 Wis. 470, 17 N. W. 389. See, also, 25 Am. & Eng. Ency. of Law (2d ed.) 1181, 1182.
Thus, in a late case in New York, where the defendant was required to provide “suitable appliances to receive and distribute a supply of water for domestic use” on the floors specified in two buildings belonging to the defendant, it was said by Judge Peoeham, speaking for the court, that:
“Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional though no provision is made for compensation for such disturbances. They do not appropriate private prop*644 erty for public use, but simply regulate its use and enjoyment by tbe owner. If be suffer injury, it is either damnum absque injuria, or, in tbe theory of the law, be is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure.” Health Department v. Rector, 145 N. Y. 32, 43, 39 N. E. 833, 836, citing, among other authorities, 1 Dillon, Mun. Corp. (4th ed.) § 141.
The police power in such cases is usually exerted merely to regulate the use and enjoyment of property by the owner. 22 Am. & Eng. Eney. of Law (2d ed.) 916; Lewis, Eminent Domain (2d ed.) § 187. It is said by the author in this last volume, and in the same section, that:
“A tract of land which requires drainage may be so situated that it can only be drained by a ditch through another tract which does not require it and would not be benefited by it. In such case certainly the drain could only be made under the power of eminent domain.”
That is the same in principle as the cases above cited where drains or ditches are constructed upon adjoining lands to improve or preserve public highways.
In the case at bar the basis of the proceedings was the right to promote the public health and welfare. A public nuisance may always be abated. Its abatement may be beneficial to the owner of the land upon which it is situated; and such benefits may be assessed against the owner. The mere fact that such benefits may be assessed against the owner does not take the case out from under the police power and place it under the power of eminent domain. In this case it is quite unnecessary to decide whether the actual physical invasion of the plaintiff’s land was a mere regulation of the use thereof to abate a public nuisance thereon, or whether it involved in addition a taking of some portion of the plaintiff’s laúd as a means to abate a nuisance on the lands of others. Even if the latter be true, the proceeding prescribed by the
There can be no question as to the power of the state to ■“compel the filling or clearing and drainage of lands which might otherwise create malaria or other diseases.” 22 Am. & Eng. Ency. of Law (2d ed.) 923, citing cases from this and other courts. So it is declared that:
“Special assessments founded on the special benefits incurred do not fall under the constitutional inhibition against taking private property for public use without just compensation.” 25 Am. & Eng. Ency. of Law (2d ed.) 1172, citing cases from this and other courts.
Here it appears that June 4, 1900, the supervisors estimated the cost of such construction of the drain at $74.50, and October 17, 1900, they ascertained that amount to be insufficient to complete the work, which cost $19 in addition, making the total cost $93.50; and so they determined that the lands drained were proportionately benefited to the amount of such costs, and so assessed against the plaintiff and his lands, as benefits, $41.92, and against the other three parties $51.58, and also made such other parties pay the plaintiff $10 damages to a certain portion of his land. There is nothing in the case to indicate that such assessment against the plaintiff and his lands was in excess of the benefits actually received; and hence it is not objectionable on such ground. 25 Am. & Eng. Ency. of Law (2d ed.) 1172; Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192, and cases there cited. Such additional assessment appears to have been authorized by the statutes. Secs. 1363, 1364, 1371. The trial court properly-held that the $41.92 was rightfully assessed against and collected from the plaintiff, and hence that he had no cause of action to recover it back.
By the Court. — The judgment of the circuit court is affirmed.
