City of Wauwatosa v. Dreutzer

Maeshall, J. Tbe sole question to be solved on this apt-peal is tbis: Can an action in equity be maintained by a municipal corporation to obtain a mandatory injunction compelling tbe removal of an encroachment upon one of its public streets without first giving tbe wrong-doer an opportunity to remove it without suit pursuant to an order made and served upon him in accordance with sec. 1330, Stats. 1898 ? It is conceded by appellant’s counsel that an action in equity, by a municipality, will lie to remedy such a matter, and conceded by respondent’s counsel that if, as a condition thereof, notice to tbe alleged guilty party must be given in accordance with tbe section referred to-, tbe complaint does not state a cause of action in that tbe order .alleged to have been served upon appellant did not sufficiently “specify tbe width of tbe road, tbe extent of tbe encroachment, and tbe place or places in which tbe same may be with-reasonable certainty.” Tbe position of appellant’s counsel is that such a notice was a necessary preliminary to tbe bringing of tbe suit; and that of respondent’s counsel is that it was not; that such section relates exclusively to proceedings for tbe enforcement of the penal statutes as regards encroachments on highways. Tbe question upon which, as above indicated, tbis appeal turns, is ruled in favor of respondent by Eau Claire v. Matzke, 86 Wis. 291, 56 N. W. 874. Tbe principle thereof became a part of tbe judicial policy of this state at least as early as Jamestown v. Chicago, B. & N. R. Co. 69 Wis. 648, 34 N. W. 728; Oshkosh v. Milwaukee & L. W. R. Co. 74 Wis. 534, 43 N. W. 489. In recent years it has been several times affirmed in effect, though not in precisely such a case as tbis. Madison v. Mayers, 97 Wis. 399, 413, 73 N. W. 43; Pewaukee v. Savoy, 103 Wis. 271, 280, 79 N. W. 436; Levis v. Black River Imp. Co. 105 Wis. 391, 395, 81 N. W. 669. True, it does not appear, by express reference in tbe opinion in Eau Claire v. Matzke, that tbe question of whether compliance with sec. 1330, Stats. 1898, by the municipality is a 121 -condition precedent to the maintenance of snob a suit as this, was involved; but the general terms of the opinion sufficiently •indicate that the judgment of the court then was that the equitable action is maintainable entirely independent of the statutory proceeding for the discontinuance of encroachments on public highways, and that is confirmed by referring to the .printed case and briefs used upon the argument. Tbe appeal turned on the sufficiency of the complaint. That did not •show service of a statutory order on the defendant to discontinue the encroachment. The circuit court held the complaint insufficient. On the appeal appellant’s attorney stated that -no attempt was made to comply with such .section, — that the action was brought entirely without reference thereto, and in-sisted that the right to proceed in equity was not hampered in •any way thereby. Tbe general language of the opinion, considered with reference to the question presented h> the court for decision, shows clearly that the result reached was intended to cover the precise question here presented. In harmony therewith, the conclusion is now reached that the right •to institute this suit was not dependent upon a statutory order having been made and served upon appellant to discontinue the encroachment, and that the complaint states a good cause •of action. By the Court. — Tbe order is affirmed.