James v. City of Darlington

• Decision Date: 28 February 1888
• Citation: 36 N.W. 834,71 Wis. 173
• Parties: JAMES v. CITY OF DARLINGTON ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 173

36 N.W. 834

JAMES

v.CITY OF DARLINGTON ET AL.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, La Fayette county.J. R. & D. S. Rose, ( Orton & Osborn, of counsel,) for appellant.

R. J. Wilson, ( H. C. Martin, of counsel,) for respondents.

ORTON, J.

The plaintiff is the owner of parts of two blocks, contiguous to Louisa street in said city, used for a lumber yard which is accessible to Main street, the principal business street, and other parts of said city, by said Louisa street, and the use of said street is essential to the business of said lumber yard and the profitable use of said premises. The Chicago, Milwaukee & St. Paul Railway Company, the other defendant, owns a right of way diagonally across said Louisa street, and near said premises. The common council of said city passed an ordinance, without any previous petition or notice, vacating and discontinuing that part of said street occupied by said company's right of way, in order to allow said company to build a depot building therein, and close up and permanently obstruct said street at that point. The plaintiff obtained an injunction restraining said city, its officers, and certain persons, from closing, vacating, or discontinuing said street, and restraining said railroad company from shutting up, closing, or permanently obstructing said street at that point, and from building a depot within the limits of said street. On the motion of the defendants the circuit court vacated said injunction, and this appeal is taken from said order. The only question in the case is whether said ordinance is valid and effectual to vacate Louisa street at that point. Subdivision 26, § 1, c. 6, City Charter, contained in chapter 30, Laws 1877, gives the common council the following general power: “To make, open, keep in repair, grade, improve, lay out, alter, widen, vacate, or discontinue streets, avenues, etc.” The learned counsel of the respondents contend that this power is general and unlimited, and vests the common council with the fullest discretion as to the manner in which it may be exercised, and that by a mere ordinance is the usual and proper manner of exercising such a power. The contention of the learned counsel of the appellant is that such power is to be exercised in the manner provided by section 904, Rev. St., which reads as follows: “Upon the petition in writing of all the owners of lots or land on any street or alley in such village, and not otherwise, the board of trustees may discontinue such street or alley, or any part thereof. At least one week before acting on such petition the board shall cause a written or printed notice to be posted in three public places in such village, stating when the petition will be acted on, and what street or alley, or what part thereof, is proposed to be vacated.” This section, by its terms, only refers to villages, and not to cities. The sections preceding it, and including section 895 provide that village boards, “whenever they shall intend to lay out, open, change, widen, or extend streets, lanes, alleys, public grounds, square, or other place, to construct and open, alter, enlarge, or extend drains, canals, or sewers, or alter, widen, or straighten water-courses, or to take grounds for the use or improvement of a harbor,” shall proceed in a certain manner specifically pointed...