Amos v. City of Fond du Lac

LyoN, J. The charter of. the city of Fond du Lac contains the following sections, both- of which were’in force when the alleged cause of action arose, and when the action was commenced: “ Section 11. Nothing in the preceding sections contained shall be so construed as to relieve the owners or occupants of any real estate from the duty of keeping their respective premises at all times in a safe condition, and in a good and thorough state of repair; but such duty is hereby expressly enjoined and imposed upon all such owners and occupants; and if at any time injury shall be sustained by any individual, or the city shall be subjected to any damages, in consequence of the neglect of any such owner or occupant to repair or keep such sidewalk in a safe condition after due notice, such owner or occupant guilty of any such negligence shall be liable for such damages, and the same may be recovered by suit in any court of competent jurisdiction.” City Charter of 1868, ch. XIII, sec. 11. (P. &. L. Laws of 1868, p. 132.) “ Section 1. Whenever any injury or damage shall happen to any person or property in said city of Fond du Lac, by reason of any insufficiency, want of repair, defect or incum-brance of any street, sidewalk, alley, or public ground, or from any cause for which the city would be liable, and such insufficiency, want of repair, defect or incumbrance, or other cause of such injury or damage, shall arise from or be produced or caused by the wrong, neglect of duty, default or negligence of any person or corporation, such person or corporation so guilty of such wrong, neglect of duty, default or negligence, shall be primarily liable for all damages for such injury, and the person sustaining such damages shall have the [700] right to sue for and recover the same against such person or corporation in any court having jurisdiction thereof, and the said city shall not be liable therefor until all legal remedies shall have been exhausted to collect such damages from such person or corporation.” City Charter, ch. XIV, sec. 1; Laws of 1876, p. 198. If the lot-owner is primarily liable under sec. 1 above quoted, that is regularly matter of defense in an action brought in the first instance against the city to recover damages for an injury, and such primary liability need not be negatived in the complaint. Hence, a complaint in an action of this nature is not demurrable for that reason, if it fails to negative it. Independently of the averments concerning the ownership of lot 22, and the attempt to commence an action for the same cause against such owner, the complaint in this action undoubtedly states a cause of action against the city; and it states a cause of action notwithstanding those averments, unless it appears from the complaint that the owner of lot 22 is primarily liable for the injury complained of. The question to be determined is, therefore, whether the complaint shows on its face that the owner of lot 22 is thus liable for such injury. • In Hincks v. Milwaukee, decided at the present term (ante, p. 559), we had occasion to consider a provision in the charter of that city identical in principle, and nearly so in language, with section one above quoted. In that case we held that the provision is valid, but that it is restricted in its operation “ to a case where the party causing the defect holds no contract relation with the city, as where the owner or occupant of the adjoining lot creates the nuisance.” We also were inclined to the opinion that the provision “ was intended to include a case where the obstruction is placed in the street by the owners of adjoining lots while making some improvement for their own convenience or benefit, with which the city has nothing to do.” If that is the only purpose of the provision, the [701] present case is not within it; for no act of the lot-owner is complained of, hnt only his neglect to repair the sidewalk, and that is a matter entirely within the control of the city. But we choose rather to consider this case on the theory that the lot-owner may, under certain circumstances, be held liable for injuries caused by a defective sidewalk adjacent to his lot, which he has neglected to repair, and that the city cannot be held liable therefor until all legal remedies against the lot-owner have been exhausted. The basis of .such primary liability of the lot-owner is his “ wrong, neglect of duty, default or negligence ” in respect to the sidewalk; and the question is, whether either of these conditions of liability is alleged in the complaint against the owner of lot 22. We find no provision in the charter of the city of Fond du Lac requiring a lot-owner to keep the sidewalk in front of his lot in repair, unless it is contained in sec. 11, ch. XIII of the charter, above quoted. That section expressly enjoins and imposes upon the owners or occupants of any real estate the duty “ of keeping their respective premises at all times in a safe condition, and in a good and thorough state of repair.” The word premises, as used in the section, and as applicable to this case, is evidently synonymous with lot, and does not necessarily include the adjacent street and sidewalk. Sec. 1 of the same ch. XIII speaks of lots fronting on a sidewalk, and sec. 2 mentions lots or parts of lots fronting or opposite a street. These forms of expression render it quite clear that it was not intended to include streets and sidewalks in the term lots and premises, as used in that chapter of the charter. There is another reason why this construction should he adopted. The duty of keeping the premises in good repair is imposed upon the occupant as well as the owner. This doubtless means one in the exclusive occupation; and premises which cannot he so occupied, could not have been intended. Although lot 22 extends, in fact, to the middle of the street, [702] yet that portion of it which is included within the limits of the street, cannot lawfully be thus occupied; for such occupancy would be entirely inconsistent with the use of the street by the public. This view is sustained by the judgment of this court in Weisbrod v. Daenicke, 36 Wis., 73, where a like construction was given to the homestead exemption, law. If, therefore, the duty of repairing the sidewalk in question was upon the owner of lot 22, it was so by virtue of the last clause of sec. 11. That clause subjects- the owner or occupant of any premises to liability for damages resulting from his neglect “ to repair or keep such sidewalk in a safe condition, after due notice.” What is meant by the term “such sidewalk?” Sidewalks are not mentioned elsewhere in sec. 11; neither are they mentioned -in the chapter of which that section is a part, except in secs. 1 and 2. Section 1 gives the common council power to establish and change the grade of any sidewalk, and sec. 2 authorizes the street commissioner to order, construct and build, in the manner therein prescribed, all sidewalks, and cause them to be raised, lowered, or placed on the established grade. The conclusion seems inevitable that the phrase “ such sidewalk,” in sec. 11, must mean those particular sidewalks mentioned in secs. 1 and 2. The complaint does not allege that the sidewalk in question was built by order of the common council or street commissioner, and hence it does not appear that it is one which, under the charter, the owner of lot 22 was bound to keep in repair, or concerning which he was bound to any duty, or subjected to any liability. Rut, were this otherwise, the liability of the lot- owner, under sec. 11, depends upon due notice. We do not stop to inquire what this notice should be, or the manner in which it must be given. It is sufficient, for the purposes of this appeal, to say that no notice whatever to the lot-owner to repair the sidewalk is alleged in the complaint. The facts alleged in the complaint as to the ownership of [703] lot 22, and the attempt to commence- an action against such owner to recover damages for the injuries complained of, contain no element of an estoppel. Notwithstanding those allegations, the plaintiffs may still be heard to maintain that no cause of action against such owner is stated in the complaint. We do not determine whether the issuing of a summons against the lot-owner who is primarily liable in such a case, which summons cannot be served because of the nonresidence of the defendant, is a sufficient compliance with the requirements of sec. 1, ch. XIY of the city charter in that behalf. In the view we have taken of the case, we do not reach that question. Because it does not appear that the owner of lot 22 is primarily liable for the injury complained of, and because the complaint states a cause of action against the defendant city, the demurrer thereto was properly overruled. By the Gowrt. — Order affirmed, and cause remanded for further proceedings.