Oeland v. Woldenberg
| Decision Date | 13 January 1925 |
| Citation | 185 Wis. 510,201 N.W. 807 |
| Parties | OELAND v. WOLDENBERG ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.
Action by L. L. Oeland against Max Woldenberg and others. From an order overruling defendants' demurrer to the complaint, defendants appeal. Reversed and remanded.
The demurrer to the amended complaint was overruled. The latter, in substance, recitedthat the plaintiff is and has been a resident taxpayer of the city of Madison, said county. That a Wisconsin corporation, the Hawthorne Investment Association, owns a building called “Hawthorne Apartments” located on Hawthorne court in said city; that plaintiff is a stockholder in, president and manager of, said corporation; that the defendants were moving a three-story frame building belonging to and located on the real estate of defendant Woldenberg from one part of such real estate to another, so that, when the movement was completed, such building would be placed opposite to and within 75 feet of said Hawthorne Apartments; that both of said buildings are within the established fire limits of said city; that such moving and replacing of defendant's building would be a violation of the ordinances of said city, and “will constitute a continuing fire menace to the said Hawthorne Apartments and to the interests of plaintiff”; that the Madison common council by resolution attempted to authorize such threatened removal, and the commissioner of buildings of said city issued a pretended permit therefor, each of which was wrongful and without authority; that the plaintiff has no adequate remedy at law, in that the city attorney of Madison, although so requested, refuses to issue a warrant for defendants' arrest or to prosecute them for such removal so in alleged violation of the city ordinances. The relief prayed was that defendants surrender for cancellation the aforesaid permit and be restrained from so moving the building.
The defendants' demurrer was: First, that the court has no jurisdiction of the subject of the action; second, that the plaintiff has no legal capacity to sue; third, that not sufficient facts are stated to constitute a cause of action.
Defendants appeal from an order overruling such demurrer.
Rufus B. Smith, of Madison, for appellants.
James J. McDonald, of Madison, for respondent.
ESCHWEILER, J. (after stating the facts as above).
[1][2] The removal by defendants of the wooden building in question from one portion of the lot to another, and the replacing of it, in so far as it was charged to be a violation of city ordinances, is primarily the proper subject of prosecution by the city authorities. Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446.
The allegation in the complaint to the effect “that, if said building is moved to its proposed location, it will constitute a continuing fire menace to the said Hawthorne Apartments and to the...
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