Warden v. Hart

•TiMLiN, J. Tbe appellant, an alderman of tbe city of Elroy and a resident and freeholder and taxpayer therein, brings this suit to enjoin W. H. Hart and Hugh Campbell from .making an excavation in a public street of that city for the purpose of constructing a platform scales under permit from tbe common council of tbe city. He makes tbe city of Elroy a party but asks no relief against it. • The answer in substance avers a permit from tbe common council of tbe city of Elroy to construct in tbe street a platform scales and a release by tbe Chicago & Northwestern Eailway Company, which is tbe abutting owner, and that tbe plaintiff bad no such interest in tbe matter as entitled him to maintain tbe action. Tbe findings of tbe court sustained tbe answer and also found on sufficient evidence that tbe platform scales when completed would not in any wise obstruct public travel upon or tbe public use of tbe street in question. For some purposes which do .not materially interfere with tbe public use of tbe streets a city- has inherent power to permit temporary use of part of tbe street by abutting owners or those acting for them, such as deposit of building material, tbe use of an excavated area under a sidewalk, tbe maintenance of signs, or tbe like. The sub-sidewalk excavation is spoken of in Burnham v. Milwaukee, 155 Wis. 90, 143 N. W. 1067, as a “convenience of a temporary character which” tbe lotowner “was rightfully enjoy [497] ing and bad tbe right to enjoy until such time as the city, representing the state in its paramount right to the use of the street, should by proper ordinance or resolution terminate his right of enjoyment.” This species of usufruct is also recognized in McClure v. Sparta, 84 Wis. 269, 54 N. W. 337. In Emerson v. Babcock, 66 Iowa, 257, 23 N. W. 656, •speaking of a platform scales in the street, the court says: “If the plaintiff was permitted to maintain his scales in the street for a time, the privilege must be regarded as a mere license which may be terminated at any time, and it is immaterial whether the erection in the street amounts to a nuisance.” That is, it is immaterial as regards the power of the city to have it removed. Ch. 382, Laws of 1913, is prospective in its operation and does not apply in this case. Lakeside L. Co. v. Jacobs, 134 Wis. 188, 114 N. W. 446, is not in point because there the parties sought to uphold by action a legal right founded upon a grant which the municipality had no power to make. Here we may assume the municipality has no power to grant the right to maintain a platform scales in the streets. That privilege is not the subject of grant, but the municipality may permit a temporary use by the owner of the street where such use does not interfere with the public use for travel or any other lawful public use of the street, .and the permission is subject to revocation at any time at the pleasure of the municipality. It is against this sort of act by the city that the appellant as a taxpayer seeks to maintain the action. The next question is with reference to' his right to do so^ Averment, and proof that the appellant is a taxpayer gives him no standing in a court of equity to regulate or control municipal affairs except in cases where the administrative act is unlawful and the taxpayer is threatened with or suf-iers a pecuniary loss in consequence thereof. Zettel v. West [498] Bend, 79 Wis. 316, 48 N. W. 379. A private person cannot maintain an action for damages resulting from tbe obstruction of a public highway, or a suit in equity to prevent such-obstruction, unless it appear that he has sustained damages-differing not merely in degree but in kind from the damage’ sustained by the general public. Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969; Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600; Mahler v. Brumder, 92 Wis. 477, 66 N. W. 602; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831. The mere fact that appellant is an alderman cannot, under the circumstances, add anything to his right to maintain the action. Aldermen must, generally speaking, govern the city through the regular channels of city government, not by adversary proceedings in the courts. If appellant’s official status-as a single alderman were relevant, then his vote as aider-man in favor of the permit in question might also be relevant; but neither of these is relevant. He cannot maintain this action because he suffers no pecuniary loss in consequence of the act sought to bo enjoined and because the' wrong, if wrong it is, is to the general public and not in the least special or peculiar to the appellant. By the Court. — Judgment affirmed.