Pearce v. City of Milwaukee , 18 Wis. 428 ( 1864 )

By the Court,,

DlXON, C. J.

The only question in this case is, whether the plaintiffs waived their right to damages against the city by doing the grading themselves in respect of which. the damages are claimed. The plaintiffs owned and occupied tbe lots in front of which the grading was to be done. The ordinance altering the grade had been passed, and the order requiring the plaintiffs to do it in conformity to the ordinance had been made and published. It was an order which the street commissioners were authorized to make. Charter, ch. vii, sec. 6, Laws of 1852, ch. 56. The performance of the work, under these circumstances, was the performance of a duty imposed by the charter; and how can such performance be regarded as an abandonment of the claim of the parties to damages ? The work was done, not voluntarily, but by compulsion. The city authorities cannot pass ordinances and make orders directing acts to be done, and, when they are done, avoid responsibility for their performance by averring that the ordinances and orders had no influence. The complaint, therefore, states a good cause of action, and the demurrer was properly overruled.

Order affirmed.