Davis v. City of Appleton

WiNslow, J. The charter of the city of Appleton (sec. 24, subch. V, ch. 441, Laws of 1885) provides that, except in the case of a city order, “ no action shall be maintained by any person against the city upon any claims or demands of any kind whatsoever, whether arising from contract or otherwise, until” such claim shall have been presented to the common council. Appellant claims that, because the complaint in this case does not allege any such presentation, this action cannot be maintained. There are two answers to the objection: First. The provision is not a condition precedent to the right of action, but is in the nature of a statute of limitation; hence it is not necessary for the plaintiff to allege compliance with it, but the defendant must allege the [587] failure to comply in defense, or it will waive tbe point. O'Connor v. Fond du Lac, ante, p. 253. Second. Such a provision is very plainly inapplicable to an action for equitable relief solely, like the present action. Pinkum v. Eau Claire, 81 Wis. 301. The question as to whether the plaintiff owned the twelve-foot strip of land upon which the city proposed to erect the trestiework and water tank in question, or whether it was part of the public street, was the question of fact which was. chiefly contested upon the trial. The plaintiff’s land contract does not cover this disputed strip. The description contained in the contract covers only the south 110£ feet of the west 67 feet of lot 1, block 29, according to John Stephens’s map. Eeference to this map shows that, as represented thereon, lot 1 does not extend over the twelve-foot strip in dispute, and hence a conveyance of lot 1 “ according to ” such map cannot, under any known rule of interpretation, be held to convey any part of the strip. This contract is the only paper title which the plaintiff proved. Nor is any claim of title by adverse possession available to the plaintiff. It is neither alleged in the pleadings nor found by the court. The complaint simply alleges generally that the plaintiff has title. The reply to the defendant’s counterclaim alleges that the twelve-foot strip has been in the actual and continuous occupancy and possession of the plaintiff and her grantors for more than forty years, and that they have during that time erected valuable buildings thereon, and the findings contain the same statement. It is nowhere alleged or found that such possession was adverse or under claim of any exclusive right, nor would the evidence justify such a finding, and, as this element is necessary in order to create a title by adverse possession, it is evident that the question of such title is not in the case. But it is claimed that the city is estopped from now claiming tnat the twelve-foot strip is a part of Johnson street. [588] We have found no evidence that would justify such a conclusion. It is true that there was evidence tending to show that the city in 1869 caused a survey of the street to be made, which survey probably fixed the supposed width of the street at sixty feet, and constructed a sidewalk on the line so surveyed, but nothing appears to have been done by the plaintiff or her grantors in the way of expenditure of money or erection of buildings in reliance upon the city’s action. There are no circumstances such as were proven in the cases of Paine L. Co. v. Oshkosh, 89 Wis. 449, and Reuter v. Lawe, 94 Wis. 300. The testimony necessary to establish an estoppel against the city in cases of this nature must be clear and distinct, and of such a character as to amount to a fraud to permit the city to claim otherwise. Ashland v. C. & N. W. R. Co. 105 Wis. 398. The findings, therefore, Avhich determine that the plaintiff has title to the twelve-foot strip in controversy, and that the city is estopped from claiming the same to be a part of the street, must be and are distinctly overruled. This determination, however, does not militate against the correctness of the judgment enjoining the city from entering on the strip for the purpose of erecting the water tank and maintaining the same. The plaintiff’s rights as equitable owner under her contract up to the line of the twelve-foot strip are undisputed. If the twelve-foot strip be a part of the street (as between her and the city), still the city has no right to erect a permanent structure thereon, which does not aid public travel and injuriously affects her beneficial enjoyment of her premises or her means bf ingress or egress. La Crosse City R. Co. v. Higbee, 107 Wis. 389. We construe the judgment as simply enjoining the city from appropriating the twelve-foot strip for the purpose of erecting a water tank thereon, and from using or maintaining the same, and, so construing it, there seems no doubt of its correctness, notwithstanding the plaintiff has not shown herself to be the owner of the strip. [589] The appellant, however, contends that it is entitled to judgment upon its counterclaim compelling the plaintiff to remove so much of her building as stands on the twelve-foot strip, and enjoining her from erecting any further structures thereon. The conclusions which we have reached, however, forbid such a judgment. It is true iye have found that the plaintiff has no title to the strip, but we have not found that the strip is a part of the street. The parties necessary to the determination of that question are not before the court. The evidence shows that it may be a serious question whether Stephens, the plaintiff’s grantor, is not the owner of the twelve-foot strip. He is not before the court, no judgment here would conclude his rights, and we do not feel that we would be justified in adjudging that the twelve-foot strip is a part of the street and that the plaintiff should remove her building, when the question as to Stephens’s title to the strip has not been determined. By the Court.— Judgment affirmed.