Steltz v. City of Wausau

Cassoday, L The complaint apparent^ states facts sufficient to show that the defendant created a nuisance of special and peculiar damage to the plaintiff. Evans v. C., St. P., M. & O. R. Co. 86 Wis. 603. It would seem that notice by the injured party to the author of such nuisance, as to the location and nature of the same and the damages sustained thereby, was not a condition precedent to the maintenance of an action therefor at common law nor under sec.-1339 or sec. 3180, R. S. Hughes v. Fond du Lac, 73 Wis. 380; Cairncross v. Pewaukee, 86 Wis. 186. In Hughes v. Fond du Lac, the charter provision was that “no action shall he maintained against the city ” unless notice in writing be given “within five days of the occurrence of such injury or damage,” etc. Sec. 5, ch. 299, Laws of 1885. This language is substantially the same as sec. 1339, E. S., except that the notice was to be given in five days instead of ninety days. It is contended that the same rule is applicable to the case at bar. But the charter provision here in question is that “no action in tort shall lie or he maintained against the city of Wausau unless a statement in writing, signed by the person injured or claiming to be injured,' of the wrong and circumstances thereof and amount of damages claimed, shall be presented to the common council within ninety days after the occurring or happening of- the tort alleged.” Sec. 161, ch. 151, Laws of 1883. The complaint entirely fails to allege that any such notice was given, or any such claim presented, within the time prescribed. This is an action in tort, and comes within the express language of the section. As observed, that section declares that no such action “shall lie or be maintained” unless such notice be- given and such claim presented within the time mentioned. In other words, the section makes the giving of such notice and the presentation of such claim a condition precedent, not only to the maintenance of such an action, but to the commencement [622] of such an action. This is in accord with the repeated decisions of this court. Thus, in Hiner v. Fond du Lac, 71 Wis. 78, the provision of the charter then in force and applicable was substantially the same as the charter provision of the defendant here involved, and the complaint in that case, as the complaint in this, failed to allege the giving of such notice or the presentation of such claim within the time prescribed; and the judgment was reversed because the court refused to sustain the demurrer ore tenus to the complaint. Sowle v. Tomah, 81 Wis. 351. Those cases, and others like them,, rule the case at bar. ■By the Court.— The order of the circuit court is affirmed.