Meinzer v. City of Racine

ORton, J. This case was here by appeal from an order overruling the demurrer to the compliant. This court held that the complaint stated ■ a good cause of action, and, affirmed the order. 68 Wis. 241. The facts set out in the complaint appear in that case, and need not here be, restated. They are, in substance, that the city caused! the street in front of the plaintiff’s lot to be graded illegally and in such way as to injure said premises. The necessary [565] steps to make such work lawful and a charge upon the plaintiff’s lot were not taken. This is the gravamen of the complaint and the ground of the action. We think that the proof sufficiently showed that the city caused the work to be done that produced the injury, but not in accordance with the requirements of the charter, and therefore unlawfully done. A resolution was passed by the city council for the grading of said street. Proposals were made for bids to do the work according to the established grade. One Replinger was the lowest bidder. A resolution was passed requiring the mayor and comptroller to enter into a written contract with him accordingljq but this was never done. Replinger, however, went on and did the work, and cut down the street several feet adjacent to the plaintiff’s lot, to his great injury and damage. He did the work under the direction of the aldermen of the ward in which the street was located. And, in accordance with a survey made by the city surveyor on completion of the work, said Rep-linger was furnished with a certificate of said surveyor showing the work done, and he was paid by orders regularly issued to him by the aldermen of said ward on the city treasurer, which were countersigned by the city comptroller, and on presentation were duly paid by the city treasurer. Many of the antecedent steps required by the charter to make the work legal and the expenses thereof chargeable to the lot were not taken, as alleged in the complaint. It appears to me that the plaintiff’s right of recovery on his complaint and on this evidence is res adjudieata in the above decision on the demurrer. The learned counsel of the respondent seeks to show that the work was not lawfully done, and yet this is the very ground on which the plaintiff is entitled to recover. We'refer to the many authorities cited in the opinion of his honor, Mr. Justice Cas-soday, in the case on the demurrer, to sustain his right to [566] recover on that ground, and particularly to the case of Grossest v. Janesville, 28 Wis. 420, and the case of Dore v. Milwaukee, 42 Wis. 108. In the first of these cases the present chief justice said: “ The validity of the acts of the city officers depends in the present case upon their having proceeded in conformity to the charter; if they have caused Eranldin street to be graded iii disregard of the conditions upon which they were to exercise the power of grading streets, the city is liable for damages resulting from the illegal proceedings.” The judgment was affirmed on that ground. In the second case the decision is based upon the same ground, and the order overruling the demurrer to the complaint was reversed because the complaint did not sufficiently aver the illegal proceedings. It is contended that the city is not liable because it never authorized the work and is not in any wajr responsible for it. But the charter contains abundant authority for the city council, representing the city, to grade streets and conduct works of improvement of streets, and gives them general supervision of streets, at least equally with the charter of Janesville in the case above cited; and we are very clear that the city, in what was done on this street to the injury of the plaintiff’s premises, is responsible and liable for the damages. The judgment was recovered in the case of Addy v. Janesville, ante, p. 401, and affirmed by this court in December, 1881, on precisely the same ground,— that Main street in that city was illegally graded, and thereby caused the damage to the plaintiff’s ¡ premises. In short, this ground of recovery against cities has been so often affirmed and approved by this court and other courts that it has ceased to be an open question. The judgment dismissing the plaintiff’s complaint on the ground that -there was no written contract entered into,'or for any other reason, is clearly erroneous. By the Court.— The judgment is reversed, and the cause [567] remanded with direction to render judgment for the plaintiff upon the verdict of the jury rendered by stipulation of the parties.