Sang v. Duluth City

Canty, J. This is an appeal from an order overruling a demurrer to the complaint, which alleges that the plaintiff entered into a contract with the village of West Duluth, a village organized under the general laws of this state; that by said contract plaintiff [83] agreed to grade, pave, and otherwise improve a certain street in the village, and the village agreed to pay him therefor according to a stated schedule of prices for the different kinds of work; that the street crossed the right of way of a certain railroad company, and the village had never acquired any right of way for said street across such railroad right of way; that plaintiff performed all of the work on all of the rest of said street except across such railroad right of way, and was prohibited and prevented by the company from performing such contract across such right of way. Plaintiff does not claim to recover for any work so performed, but claims loss of profits for being prevented from performing on the railroad right of way, and loss by depreciation of material purchased for that part of the work. We are of the opinion that the part of the contract which provided for improving this railroad right of way was ultra vires, and that the plaintiff cannot recover. It does not appear that the city had any color of right whatever. It appears to be merely a contract to commit a trespass. We cannot see that the city had any apparent right on which the plaintiff can ground the doctrine of estoppel. It is unnecessary to decide what the rule would be if the village had some color of right, as if it claimed under .defective or void condemnation proceedings, or a defective or void dedication, or was in adverse possession, so that the statute of limitations was running in its favor. Here it must be held to be a contract to initiate a trespass, where there is no apparent right or color of right whatever. The allegation in the complaint that the village had ample time after the contract was made to institute condemnation proceedings, and acquire title to this right of way, is not material. The order appealed from should be reversed. So ordered. Collins and Buck, JJ., absent, took no part. (Opinion published 59 N. W. 878.)