Matson v. Town of Caledonia

• Decision Date: 05 November 1929
• Citation: 227 N.W. 298,200 Wis. 43
• Parties: MATSON ET AL. v. TOWN OF CALEDONIA ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 43

227 N.W. 298

MATSON ET AL.

v.TOWN OF CALEDONIA ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from a judgment of the Municipal Court for Racine County; E. R. Burgess, Municipal Judge. Reversed.

Action begun October 24, 1928, by Matt Matson, Edward Makovesky, Paul Schemming, and J. J. Schilling to cancel deeds by which the defendants Stritesky and the defendant town conveyed to the defendant Milwaukee Electric Railway & Light Company a plat of ground used as a memorial park, and to restrain the defendants from removing a memorial erected on said land. From a judgment dismissing the action entered March 5, 1929, the plaintiffs appealed.

After the close of the recent World War, funds raised by voluntary subscription were used to purchase the plot of ground here in question from the defendants Stritesky, and to erect thereon a memorial to those who went from the town of Caledonia and vicinity to the war, and especially to honor the memory of those who lost their lives in that great conflict.

After the memorial had been erected, dedicated, and maintained by the town for some years, the defendant Milwaukee Electric Railway & Light Company, as a part of its plan to relocate its right of way, secured a deed to the plot here in question from the defendants Stritesky. Later it secured a deed from the defendant town after the conveyance of this land had been authorized by vote of the electors at a special town meeting. As a part of the contract of purchase, the defendant railway company agreed to move the memorial to the town cemetery, to landscape the area on which the memorial was placed, and to create a trust fund of $1,000, the income of which was to be perpetually used to maintain the memorial and its surroundings.

Before the memorial had been moved, this action was begun to prevent such removal and to cancel the deeds conveying the property to the railway company.Whaley & Paulsen and Beck, Smith & Heft, all of Racine, for appellants.

Thompson, Myers & Helm, of Racine, and Shaw, Muskat & Sullivan, of Milwaukee, for respondents.

STEVENS, J.

[1] 1. Plaintiffs concede that they have no right to maintain this action if the defendant railway company can acquire the land in question by condemnation. The railway company does not possess such power. The chapter of the statutes which confers the right to condemn provides that “the general power of condemnation conferred in this chapter does not extend to property owned by * * * a municipality.” Subdivision (1), § 32.03, of the Statutes. The property here in question is owned by the municipality, and is therefore not subject to condemnation.

2. All parties concede that the town possesses the power to acquire and maintain this memorial to commemorate the heroic deeds of those who responded to the call of their country in its hour of need. This power is expressly conferred by section 45.065 of the Statutes.

[2] 3. These plaintiffs allege that they brought this action “on behalf of the taxpayers and all residents” of the town. “Such actions may be brought where municipal authorities are about to unlawfully dispose of public property or pay out public funds.” Linden Land Co. v. Milwaukee Electric Railway & Light Co., 107 Wis. 493, 503, 83 N. W. 851, 854. Plaintiffs bring themselves squarely within this rule by alleging that the town unlawfully conveyed this land.

“The direct injury to be remedied where the taxpayer intervenes and sets the judicial machinery in motion for that purpose is not personal and direct to himself, but to the corporation. * * * That jurisdiction of the court is the most powerful and effective force to prevent and redress wrongs to public corporations when their officers squander public money, or improperly surrender or violate public rights, either corruptly or ignorantly. * * * The court, * * * will recognize the interests of the corporation as a whole, and with the evidence produced before it,...