Roehl v. City of Milwaukee

Siebeceeb, J. Tbe judgment for the recovery of tbe amount assessed against tbe plaintiff as tbe excess of benefits over tbe damages awarded in tbe proceedings is assailed upon tbe ground tbat be voluntarily paid it. It appears tbat plaintiff protested against payment of tbis sum, but that such payment was demanded as a condition of receiving payment of [345] ■other taxes due from Mm. The plaintiff manifestly understood that the refusal to pay this assessment would, under the condition imposed by the collector, result in a sale of his property for a default in the payment of his taxes. The condition thus confronting him evidently coerced him into the payment of tMs sum. TJnder the circumstances it was not a voluntary payment within the rule of Parcher v. Marathon Co. 52 Wis. 388, 9 N. W. 23. The proceedings for the talcing of plaintiff’s land are assailed as wholly void upon the ground that the city omitted to comply with the provisions of sec. 3187a, Stats. (1898). The provisions of this section apply to the proceedings under which the city attempted to. take plaintiff’s property for the improvement of Island avenue. The resolution of the common council declaring the necessity for the widening of this street is the only proceeding recorded with the register of deeds of the county. This is, however, not sufficient to meet the requirements of the statute. It is to he noted that this resolution fails to comply with the statute in the material particulars that it fails to give a full and accurate description of the land affected thereby and it is not accompanied by a map showing the location thereof. The statute provides that a “resolution . . . made by any such body, whereby any land shall be taken or affected without an application having been made therefor, shall have no effect and shall not be notice to any subsequent purchaser or incumbrancer unless such resolution ... be recorded.” Sec. 3187a, Stats. (1898). It was decided in Svennes v. West Salem, 114 Wis. 650, 91 N. W. 123, that the requirement “be recorded” meant recorded in the office of the register of deeds. It is evident that the part of the statute just quoted refers back to the part immediately preceding it, and that the reference to a “resolution or order,” whereby land shall be taken or affected, embraces the resolutions or orders specified in the preceding sentence, namely, a “final resolution or order.” It therefore follows [346] that unless the filial resolution whereby land is to be taken is recorded it will, have no effect. No such resolution was recorded in the office of the register of deeds, and under the provisions of the statute the proceeding's are of no effect, for the statute renders all proceedings void unless a final resolution, “giving a full and accurate description of the land affected thereby, and accompanied with a map showing the location thereof, be recorded in the office of the register of deeds of the county in which the lands are situated.” The failure to comply with this requirement of the statute nullifies the proceedings. It is argued that the effect of the statute should be limited to “subsequent purchasers or incumbrancers.” Such an interpretation would, in our judgment, be contrary to the intent of the legislature and contradict the plain meaning of the act. Under the circumstances the plaintiff had the right to restrain the city from taking his land, and to recover the sum of money he had been forced to pay the city because of the illegal proceedings. By the Court. — Judgment affirmed.