State ex rel. Taylor v. City of Superior

108 Wis. 16 | Wis. | 1900

BaedeeN, J.

Sec. 113, ch. 124, Laws of 1891, gives the board of public works, subject to review by the common council, authority to establish the grades of all streets of the city of Superior, and to change and re-establish the same as it may deem expedient, “ provided that whenever it shall change or alter the permanently established grade of any street, any person sustaining damages to his property abutting on such street by such change or alteration of grade shall have a right to recover such damages in the manner set forth in this chapter.” This is followed by provisions fixing the duty of the board, and prescribing the manner in which it shall proceed in the case of the alteration of grades, and, among other things, that there shall be a determination of the damages and benefits which will accrue to each parcel of real estate by such change or alteration of grade.

It is admitted that no action has been taken, either by the board or common council, to determine the relator’s damage or to comply with the charter provisions. It is assumed by defendants that, because the city decided to pay the expense of such change in grade out of the general fund of the city, no action by the board to determine the damage to abutting lands was necessary; the city relying upon sec. 119 of the charter as justifying that conclusion. Whether this assumption can be sustained is a matter of considerable doubt. The view we have taken of this case renders it unnecessary to decide, this question.

It appears from the petition and return that the proceedings leading up to the change in the grade in front of the relator’s premises were instituted in July, 1899, and that the contract for doing the work was let very soon thereafter, and the work was wholly completed a long time before the relator raised any protest or made any complaint to the city authorities. It is shown that he was fully cognizant of what was being done, and yet not until March, 1900, several months after the viaduct had been completed and opened for travel, did he make any remonstrance.

In issuing writs of mandamus merely in aid of a private right the courts always exercise a sound discretion and ■either grant or refuse it as the justice of the particular case may seem to require. State ex rel. Continental Ins. Co. v. Doyle, 40 Wis. 220. At all times they require those who would avail themselves of the assistance of this writ to be prompt, vigilant, and diligent in enforcing their rights. Merrill, Mandamus, § 87. Lapse of time, loss of evidence, intervening rights of third parties, the pature of the relief demanded, and the futility of such relief if granted, are all circumstances which the courts will consider in the exercise-of this discretion. It is the same principle that is invoked and applied in cases where it is sought to review municipal action by certiorari, a very recent and striking instance of which may be found in State ex rel. Schintgen v. La Crosse, 101 Wis. 208. In the case at bar the relator delayed over eight months before even entering a protest, and this while the work was going on right before his door. If it be admitted that a determination of benefits and damages is an essential fact and necessary to a recovery of damages by the relator, sec. 119 provides that such determination shall be made lefore any established grade shall be changed. Snowing this to be so, it became the relator’s duty to act with promptness and at a time when the relief sought would be efficacious. Under the circumstances, the court was justified in denying relief on the ground of laches.

It is further suggested that the action of the trial court was warranted on the ground that, if the change in grade-was unauthorized, the relator had his action for damages.. In view of what has already been said, we do not feel called upon to decide this question. The query, however, is suggested whether, the right to damages in such case being entirely statutory, and the charter providing a way in which such damages shall be ascertained, such remedy is not exclusive. See Dore v. Milwaukee, 42 Wis. 108. The cases where any departure from this rule has been sanctioned are mostly cases where there has been some mistake or fraud in the assessment. See Harrison v. Milwaukee, 49 Wis. 247; Kersten v. Milwaukee, 106 Wis. 200.

By the Court.— The judgment of the superior court of Douglas county is affirmed.