Rude v. Town of St. Marie

Cassoday, C. J.

The proceedings in question were in pursuance of ch. 54, -Stats. 1898, entitled “Town Drains,” which authorizes the draining of “marsh, swamp or overflowed lands.” The lands affected by the drain were determined by the supervisors to be a marsh, and were located in two adjoining quarter sections in the defendant town. The plaintiff owned 120 acres thereof, and three other persons respectively owned portions of the other 200 acres. It appears that prior to such proceedings there had been an old ditch, and the proceedings were, in part at least, to widen and deepen the old ditch. There is no claim that the proceedings were not conducted in accordance with the several provisions of the chapter mentioned. The principal contention is that the proceedings were void for failure to file in the register’s office “a notice of the pendency of such application,” as prescribed in sec. 3187&, Stats. 1898. Counsel is certainly correct if that section is applicable, for the ■section declares that “neglect to comply with” the provisions •of that section “shall render all proceedings based upon such application void.” Counsel contends that it-is applicable, because it requires “every person who makes an application to any court, county board, common council, village board, ■or town board, for laying out, widening, extending, or vacating any street, alley, water channel, park, highway, or other public place,” to file such notice of lis pendens; and that *640 the words "or town board” were not stricken ont by ch. 121, Laws of 1901, nntil after the proceedings in question. On the other hand, it is claimed on the part of the defendant that such application was not made to the “town board,” and that the “town board” did not lay out the ditch in question. The, statute required the petitioners to “make application in writing to the supervisors in the town,” etc. Sec. 1359, Stats. 1S98. The subsequent sections applicable in ch. 54 repeatedly prescribe the duties of supervisors in such matters, but nowhere refer to them as the “town board.” Secs. 1360-1371a, Stats. 1898. The application in this case was “to the supervisors of the town.” This court has, in effect, held that supervisors acting under ch. 54 of the statutes are in the exercise of a police power conferred upon them as public or governmental officers by statute, and not as a town board. Williams v. Yorkville, 59 Wis. 119 , 17 N. W. 546 ; State ex rel. Gordon v. McNay, 90 Wis. 104 , 62 N. W. 917 . Hence we must conclude that the application was to them as governmental officers, and not as a town board, so that it does not fall within the letter of sec. 3187a, Stats. 1898, to the words of which we have no right to add by construction. The proceeding, therefore, is not void by reason of failure to file notice of lis pendens in accordance with that section.

Nevertheless, counsel for the appellant contends that such an application, whether it results in taking land under the power of eminent domain or merely calls into operation the police power, is a proceeding affecting the lands relative to which the application operates, and that one object of the section is to protect subsequent purchasers or incumbrancers. It declares that “no final order, judgment or decree or final resolution or order taking or affecting such land, based upon any application therefor, shall have any effect, or be notice to any subsequent purchaser or incumbrancer, unless” _ such notice of lis pendens is filed. Id. Counsel seem to rely upon Svennes v. West Salem, 114 Wis. 650 , 91 N. W. 121 , where *641 the action was to restrain the village from constructing a drain npon the land of the plaintiff, taken by proceedings for the condemnation of the same, as prescribed by secs. 895-904, 927. See Lathrop v. Racine, 119 Wis. 461 , 97 N. W. 192, 194 . There are other sections of the statutes authorizing the superintendent of highways to enter upon any lands adjoining to or near the highway in his district, and construct such drains or ditches as may be necessary for the improvement or preservation of such highways. Sec. 1236, and other sections of ch. 52, Stats. 1898. Such construction of drains has been regarded by this court as the taking of private property for public use, within the meaning of the constitution, and hence requiring compensation therefor to be made. Sec. 13, art. I, Const.; Smeaton v. Martin, 57 Wis. 364 , 15 N. W. 403 , and cases there cited; Smith v. Gould, 59 Wis. 631 , 18 N. W. 457 ; S. C. 61 Wis. 31 , 20 N. W. 369 The section of the statute in question manifestly requires the filing of notice of Us pendens whenever lands are taken for public use by proceedings such as it defines, namely, upon application to such boards as it specifies; but for the reasons stated above it has no application here, for this proceeding was not had before any such tribunal.

Another question discussed more particularly on the oral argument was the constitutionality of this proceeding, called forth by the contention of the respondent’s counsel that this was not a taking’ under the power of eminent domain, because the construction of the drain was for a merely private use. Such contention is undoubtedly based upon certain statements contained in the opinion of Mr. Justice Oetoií in the case of Donnelly v. Decker, 58 Wis. 461, 468 , 17 N. W. 389, 391 . It is there, among other things,-said, in effect, “that such ditching and draining are for no public use whatever in the legal meaning of the term;” that “the primary object is solely to restore such lands to a proper condition for tillage and agriculture by the several owners, and for *642 their use alone. . . . This is the only object which concerns their use, and that use is strictly private;” that “there is a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the constitution, called the police power of the state.” Such statements are manifestly repugnant to other portions of the same opinion. For instance, the opinion quotes a portion of the statute wherein it is, in effect, declared that the supervisors are only authorized to lay out and establish such ditch or drain “if in their judgment such ditch, drain, or enlargement is demanded by or will conduce to the public health or welfare.” Sec. 1359, Stats. 1898. So it is said in the opinion: “This legislation may readily be referred to this power by providing for the public healthThe authorities cited in the opinion do not justify the statement that such use is private and for the sole benefit of the landowners. In speaking of that case it was said by Cole, C. I., that “the majority of the court rested the authority to enact such a law upon the police power to protect the public health and welfare.” Bryant v. Robbins, 10 Wis. 269 , 35 N. W. 545 . In a later case he said:

“The declared purpose of the law in question is to promote the public health and welfare by executing a system of drainage. That is the main purpose and object of the law.” State ex rel. Baltzell v. Stewart, 74 Wis. 620, 626 , 43 N. W. 947 .

Under the same section of the statute, and in an opinion by LyoN, O. I., it was held by this court that:

“The town supervisors, before proceeding to lay out and establish a ditch, must determine that in their judgment it is demanded by, or will conduce to, the public health or welfare. Such a determination is essential to their jurisdiction, and unless it appears on the face of their proceedings their order laying out and establishing the ditch is void.” State ex rel. Witte v. Curtis, 86 Wis. 140 , 56 N. W. 475 .

In the case at bar the supervisors met pursuant to notice ten days before the time fixed for laying out such drain, and *643 ■did then and there proceed to examine the location where it was proposed to construct such ditch and the enlargement .thereof, and did hear any and all reasons offered for or against the laying out and construction thereof, and declared .that in their judgment such enlargement of the ditch was demanded by, or would conduce to, the public health or welfare, and thereupon did decide to lay out and establish the ■same. The marsh to be so drained was upon the lands of the plaintiff and the three other parties referred to, and the drain was constructed on that marsh.

What has been said about the case of Donnelly v. Decker, supra, is not by way of criticising the decision in that case, but merely to correct certain misleading remarks of the learned justice who wrote the opinion in that case. In that case he quotes from Cooley this language:

“Similar considerations apply in the case of drainage laws, which are enacted in order to relieve swamps, marshes, and •other low lands of the excessive waters which detract from their value for occupation and cultivation, and perhaps render them worthless for use, and are likely at the same time to diffuse through the neighborhood a dangerous nuisance. If these may be drained at the expense of the owner by special tax, there can be no doubt of the right of the state to make it his duty to drain them as a matter of police regulation, the state coming forward to perform the duty at his expense in case of its not being suitably or expeditiously performed.” Donnelly v. Decker, 58 Wis. 470 , 17 N. W. 389 . See, also, 25 Am. & Eng. Ency. of Law (2d ed.) 1181, 1182.

Thus, in a late case in New York, where the defendant was required to provide “suitable appliances to receive and distribute a supply of water for domestic use” on the floors specified in two buildings belonging to the defendant, it was said by Judge Peoeham, speaking for the court, that:

“Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional though no provision is made for compensation for such disturbances. They do not appropriate private prop *644 erty for public use, but simply regulate its use and enjoyment by tbe owner. If be suffer injury, it is either damnum absque injuria, or, in tbe theory of the law, be is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure.” Health Department v. Rector, 145 N. Y. 32, 43 , 39 N. E. 833, 836 , citing, among other authorities, 1 Dillon, Mun. Corp. (4th ed.) § 141.

The police power in such cases is usually exerted merely to regulate the use and enjoyment of property by the owner. 22 Am. & Eng. Eney. of Law (2d ed.) 916; Lewis, Eminent Domain (2d ed.) § 187. It is said by the author in this last volume, and in the same section, that:

“A tract of land which requires drainage may be so situated that it can only be drained by a ditch through another tract which does not require it and would not be benefited by it. In such case certainly the drain could only be made under the power of eminent domain.”

That is the same in principle as the cases above cited where drains or ditches are constructed upon adjoining lands to improve or preserve public highways.

In the case at bar the basis of the proceedings was the right to promote the public health and welfare. A public nuisance may always be abated. Its abatement may be beneficial to the owner of the land upon which it is situated; and such benefits may be assessed against the owner. The mere fact that such benefits may be assessed against the owner does not take the case out from under the police power and place it under the power of eminent domain. In this case it is quite unnecessary to decide whether the actual physical invasion of the plaintiff’s land was a mere regulation of the use thereof to abate a public nuisance thereon, or whether it involved in addition a taking of some portion of the plaintiff’s laúd as a means to abate a nuisance on the lands of others. Even if the latter be true, the proceeding prescribed by the *645 legislature and followed bj tbe supervisors protects all bis ■constitutional rights, for it awards him due compensation.

There can be no question as to the power of the state to ■“compel the filling or clearing and drainage of lands which might otherwise create malaria or other diseases.” 22 Am. & Eng. Ency. of Law (2d ed.) 923, citing cases from this and other courts. So it is declared that:

“Special assessments founded on the special benefits incurred do not fall under the constitutional inhibition against taking private property for public use without just compensation.” 25 Am. & Eng. Ency. of Law (2d ed.) 1172, citing cases from this and other courts.

Here it appears that June 4, 1900, the supervisors estimated the cost of such construction of the drain at $74.50, and October 17, 1900, they ascertained that amount to be insufficient to complete the work, which cost $19 in addition, making the total cost $93.50; and so they determined that the lands drained were proportionately benefited to the amount of such costs, and so assessed against the plaintiff and his lands, as benefits, $41.92, and against the other three parties $51.58, and also made such other parties pay the plaintiff $10 damages to a certain portion of his land. There is nothing in the case to indicate that such assessment against the plaintiff and his lands was in excess of the benefits actually received; and hence it is not objectionable on such ground. 25 Am. & Eng. Ency. of Law (2d ed.) 1172; Lathrop v. Racine, 119 Wis. 461 , 97 N. W. 192 , and cases there cited. Such additional assessment appears to have been authorized by the statutes. Secs. 1363, 1364, 1371. The trial court properly-held that the $41.92 was rightfully assessed against and collected from the plaintiff, and hence that he had no cause of action to recover it back.

By the Court. — The judgment of the circuit court is affirmed.