Blanke v. Village of Genoa Junction

The following opinion was filed May 11, 1909: Dodge, J. Without indicating concurrence in the view of the trial court that, even if the Child survey were unrepealed, a court of equity should restrain the government of a village from removing what it deemed an improper or dangerous structure within the limits of the street, we have been brought to disagreement as to the persistency of the grade for sidewalks prescribed by adoption of that survey in 1903. After careful consideration we are unable to view Ordinance ETo. 21 otherwise than as a general designation of the grade of the streets therein named throughout their length and breadth. The industrious provision for that portion of the street extending from the curb to the Tot line seems to us wholly unambiguous. It would be absurd to declare the grade of that portion of the street and still to leave the question of the elevation of sidewalks to the will or whim of each lotowner, each of whom might elevate far above or depress below the established grade. The sidewalk, therefore, which is essentially a part of the street, might be filled with ups and downs, constituting pitfalls and traps for which’the village must bear responsibility. Such general purpose of the later enactment results in a repeal of any implied authority previously conferred by the village board to erect sidewalks pursuant to a different grade. -These plaintiffs, with full knowledge of the change thus made, with full notification from the village board that it had been enacted with the purpose of superseding the Child survey, and in violation of the [214] clearest prohibition, defiantly erected this wrongful structure within the limits of a public street. Under such circumstances we can recognize no right to persist in such a trespass simply because it had been accomplished. The right of the village government under such circumstances to-order the removal of such an obstruction and, in case of disobedience, to proceed to its demolition, is essential to the performance of the duties imposed by law upon such government. Oh. 115, Laws of 1905; subd. 11, sec. 893, Stats. (1898); McCullough v. Campbellsport, 123 Wis. 334, 101 N. W. 709. It should not be interfered with by a court. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the action. Upon a motion by the respondents for a rehearing there was a brief on their behalf by Simmons & Walher, and a brief on behalf of the appellants by Geo. W. Taylor and John. C. Slater. The motion was denied October 5, 1909.