Nicolai v. Town of Vernon
| Decision Date | 13 November 1894 |
| Parties | NICOLAI v. TOWN OF VERNON ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.
Action by Henry E. Nicolai against the town of Vernon, impleaded with Mark Davis and others, to restrain defendants from removing plaintiff's fences, and from taking a strip of his land for a highway. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.
This is an action in equity to prevent the threatened removal of plaintiff's fences, and the taking of a strip of his land for highway purposes. The complaint alleges, substantially, plaintiff's ownership of 200 acres of land in the respondent town, bordering on a certain highway, and alleges that the defendant town and the other defendants, who are alleged to be the supervisors and path master of the town, threaten and are about to enter on plaintiff's premises, and remove his fence along said highway, and to unlawfully appropriate and use for highway purposes a long strip of plaintiff's land adjoining said existing highway, and that no legal proceedings have been had for the change or alteration of the line of said highway. Irreparable injury is alleged, and a perpetual injunction is prayed for against all the defendants, preventing such threatened acts. The town of Vernon demurred to the complaint generally, and on the ground that there is a defect of parties defendant. From an order sustaining this demurrer, the plaintiff appealed.Lindley Collins, for appellant.
Ryan & Merton, for respondents.
WINSLOW, J. (after stating the facts).
The only reasonable construction of the complaint is that the supervisors and path master of the town, in their official capacities, are about to remove plaintiff's fence, on the claim that it encroaches upon the public highway. This would be an act within the scope of their general official duties, and evidently done with an honest view (no bad faith being charged) to obtain for the town a benefit. It would be the attempted discharge of a municipal or corporate duty, as distinguished from a public or governmental duty. In such cases the municipality is liable if the acts of its officers prove to be unlawful. Hurley v. Texas, 20 Wis. 634;Durkee v. City of Kenosha, 59 Wis. 123, 17 N. W. 677. If the municipality is liable for an act of its officers, it must be because the officers were its agents in the performance of the act, and the municipality has acted...
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New, et al. v. So. Davies Co. Drg. Dist.
...155 Ill. 154, 39 N.E. 593, 595; Brown v. City of Frankfort, 9 S.W. 384 (Ky.); Ennis v. Pollock, 143 Ga. 252, 84 S.E. 539; Nicolai v. Vernon, 88 Wis. 551, 60 N.W. 999; Basham v. Holcombe, 240 S.W. 691, 693 (Texas); Berdan v. Passaic Valley Sewerage Comrs., 88 Atl. 202, 206 (N.J.). (16) Where......
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New v. South Daviess County Drainage Dist. of Daviess County
... ... Frankfort, 9 S.W. 384 (Ky.); Ennis v. Pollock, ... 143 Ga. 252, 84 S.E. 539; Nicolai v. Vernon, 88 Wis ... 551, 60 N.W. 999; Basham v. Holcombe, 240 S.W. 691, ... 693 (Texas); ... ...
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