Stuart v. City of Neenah

• Decision Date: 05 June 1934
• Parties: STUART v. CITY OF NEENAH ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 546

255 N.W. 142

STUART

v.CITY OF NEENAH ET AL.

Supreme Court of Wisconsin.

June 5, 1934.

Appeals from an order of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge.

Action by Helen K. Stuart, for herself and other property owners of the city of Neenah, against the City of Neenah, A. C. Gilbert and others. From orders overruling demurrers to the complaint, defendant Gilbert and others appeal.--[[[By Editorial Staff.]

Reversed, and cause remanded, with directions.

Action brought by plaintiff, as a resident and taxpayer of the city of Neenah, on behalf of herself and all others similarly situated, to quiet title to certain land, which plaintiff alleges was conveyed and dedicated to the city by a recorded plat, but is claimed adversely to the rights, title, and interest of the city by a number of persons who, together with the city, are named as defendants herein. The city answered and prayed for the same relief as the plaintiff. Some of the defendants failed to answer or demur; some answered and disclaimed any interest in the land; and others interposed demurrers to the complaint, on the grounds that it appears upon the face of the complaint (1) that there is a defect of parties plaintiff; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The court overruled those demurrers, and the demurring defendants appealed.

Bouck, Hilton, Kluwin & Dempsey, Thompson, Gruenewald & Frye, and Hooper & Hooper, all of Oshkosh, for appellants.

Otjen & Otjen, of Milwaukee, for respondent.

FRITZ, Justice.

[1] If it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action to quiet title, the demurrers must be sustained, and it is not necessary to also determine whether there is a defect of parties plaintiff. Although certain actions may be brought by a taxpayer to conserve municipal funds or property by preventing the acquisition thereof by others through unwarranted acts or conduct, or the unlawful disposal thereof by municipal officials (Linden Land Co. v. Milwaukee Electric Ry. & Light Co., 107 Wis. 493, 503, 83 N. W. 851;Menasha Wooden Ware Co. v. Winter, 159 Wis. 437, 444, 150 N. W. 526;Matson v. Caledonia, 200 Wis. 43, 46, 227 N. W. 298;Coyle v. Richter, 203 Wis. 590, 592, 234 N. W. 906), there is no basis for such an action if it does not appear that the municipality is about to sustain any loss or be deprived of such funds or property, and that loss to the general taxpayers will follow. Berger v. Superior, 166 Wis. 476, 479, 166 N. W. 36;Bell v. Platteville, 71 Wis. 139, 147, 36 N. W. 831. Plaintiff neither alleges nor contends that the city has sustained, or is about to sustain, any loss of its property or rights as the result of any unauthorized conveyance or affirmative act by its officials. She does allege in her complaint that certain of the defendants make claim of title adverse to the city, and that there appear of record certain deeds conveying parts of the land adversely to the city's rights, title, and interest, but she concedes that “adverse possessionwill not run against the city.” Klinkert v. Racine, 177 Wis. 200, 204, 188 N. W. 72, 73. However, she does contend that “the doctrine of estoppel, due to neglect of city officials, may rob the city of valuable rights.”

[2] That city property and rights may become lost by reason of equitable estoppel has been recognized in several cases. Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108;City of Ashland v. Chicago & Northwestern Railway Co., 105 Wis. 398, 80 N. W. 1101;Arnold v. Volkman, 123 Wis. 54, 60, 101 N. W. 158, 160;Superior v. Northwestern Fuel Co., 164 Wis. 631, 641, 161 N. W. 9, 13. In Arnold v. Volkman, supra, this court said: “This court has uniformly taken advanced ground in favor of the public on the question of the loss of rights in public streets by nonuser or abandonment. The cases are numerous, and it is unnecessary to consider them in detail. Their effect is to hold that municipal corporations cannot sell the streets, nor will mere laches or nonuser on the part of the authorities or the public suffice to defeat public rights, but that cases may arise where private rights and interests have grown up, founded upon the nonaction or action, as the case may be, of the public, so that the prevention of injustice will require the application of the well-understood principles of estoppel as against the public right.”

However, “In order that an estoppel in pais may arise there...