Feiten v. City of Milwaukee

• Decision Date: 06 November 1879
• Citation: 2 N.W. 1148,47 Wis. 494
• Parties: FEITEN v. THE CITY OF MILWAUKEE
• Court: Wisconsin Supreme Court

2 N.W. 1148

47 Wis. 494

FEITEN v. THE CITY OF MILWAUKEE

Supreme Court of Wisconsin

November 6, 1879

APPEAL from the County Court of Milwaukee County.

The complaint is sufficiently stated in the brief of counsel for plaintiff, as follows:

"The complaint is in trespass on the case. Plaintiff is the owner of a certain lot in the twelfth ward of the city, and on the lot there are valuable improvements, among which is a large two-story frame building used for business and dwelling purposes. On April 26, 1875, the city concluded that that part of said premises on which the house is situated became necessary for opening a street. Upon its application, a jury was appointed May 3, 1875, to determine as to the necessity. The jury promptly reported that it was necessary, but the city unnecessarily delayed further action in the premises until October 4, 1875, when it confirmed the report of the jury, and directed its board of public works to make an assessment of benefits and damages. On November 8, 1875, the condemnation proceedings, by resolution of the common council, were rescinded and abandoned.

"The plaintiff complains that, in consequence of the proceedings so instituted, it became and was generally understood that the part of the lot on which the building is situated would be taken for the purposes of a street, and that by reason thereof she proved unable to let the premises at a fair rent during the time while such proceedings were pending, and for a considerable period thereafter, to her damage of one thousand dollars.

"For a second cause of action, the plaintiff complains that on July 16, 1877, condemnation proceedings by the city were again instituted. Notice was given, a jury appointed, a report made, the report of the jury confirmed, and an assessment of benefits and damages ordered. In the course of these proceedings, on February 14, 1878, the board of public works, pursuant to a resolution of the council, caused notice to be given in the official papers that the building would be sold at public auction; and on February 23, 1878, the said board, pursuant to said notice, entered the plaintiff's land, and did then and there sell the building, which was of the value of $ 2,500. About two months thereafter the city again abandoned and discontinued these condemnation proceedings, in the course of which the plaintiff's building was sold as aforesaid. The plaintiff complains that in consequence of these proceedings many persons were deterred and prevented from renting the premises; that her property has become depreciated in value; and that she has been greatly injured in her rents, revenues and profits, and in the value of her real estate, to the amount of three thousand dollars."

The complaint was demurred to as not stating a cause of action and from an order sustaining the demurrer, plaintiff appealed.

Order affirmed.

For the appellant, there was a brief by Cotzhausen, Sylvester & Scheiber, and oral argument by Mr. Cotzhausen.

D. H Johnson, for the respondent.

OPINION

WILLIAM P. LYON, J.

The right of the common council to discontinue and abandon the condemnation proceedings which it had instituted, is not denied by the learned counsel for the plaintiff. He also concedes that the law governing the case is correctly stated by Judge DILLON in his treatise on municipal corporations, as follows: "Where proceedings are rightfully discontinued the land owner cannot have a mandamus to collect, nor recover by action the sum that may have been estimated by commissioners; yet he may have a special action for damages for any wrongful and injurious acts of the corporation in the course of the proceedings." Section 474. This is doubtless a correct statement of the law, and expresses the limits and conditions of municipal liability in such cases.

The acts must be both wrongful and injurious, or there is no liability. If a given act done in the course of the proceedings be wrongful but not injurious, or if it be injurious but not wrongful, the municipality is not liable to respond in damages therefor. If there be injury without wrong, it is damnum absque injuria. Any other rule would render the institution of proceedings looking to the condemnation of property for public improvements exceedingly perilous to the municipality.

This action is for the loss of rents caused by the condemnation proceedings before the same were abandoned. The only averment in the first count of the complaint, which is claimed to charge a wrongful act, is that the common council unnecessarily delayed to go on with the proceedings after the jury reported that it was necessary to take the plaintiff's land.

The jury was selected May 3, 1875. The complaint does...