Luscombe v. City of Milwaukee , 36 Wis. 511 ( 1875 )

Lyon, J.

The only ruling of the circuit court which the learned city attorney claims was erroneous, is the refusal to instruct the jury as follows: “It appears from the evidence that one of the plaintiffs signed the petition introduced in evidence, asking the common council to establish a grade in front of plaintiffs’premises different from the grade established-in 1853. If the jury find from the evidence that the grade established by the ordinance of 1869 is the same as the grade petitioned for in front of said property, then the signer of that petition thereby waived his right to recover in this action.”

We think that the proposed instruction was properly refused. The record not only fails to show that the common council established the new grade of Fourth Street in front of the plaintiffs’ lot in accordance with the petition of one of the plaintiffs, but it shows affirmatively that a lower grade than that proposed in the petition was established at such point, and that the street was afterwards excavated to sucb grade. That the grade proposed and the one established are different, is an uncontroverted fact in the case; and the circuit court was manifestly correct in refusing to submit to the jury the question of fact whether they are the same.

It becomes unnecessary, therefore, to decide whether the plaintiff who signed such petition could have recovered any damages caused by the new grade, hád the council granted the prayer of the petition and established the grade as therein specified. We leave that question undetermined.

The same question was in the case of Stadler v. Milwaukee, 34 Wis., 98, but as no allusion is made to it in the opinion prepared by Chief Justice DixoN, it may be observed here, that the petition signed by Stadler was not granted, but, as in this case, a grade different from that proposed in the petition, and more injurious to the land of the petitioner, was established by the council. Moreover, Stadler did not sign the petition in respect to the lot on account of which he and his coplaintiff claimed damages in that action, but as sole owner of another lot affected by the grade.

Under the circumstances of this case, we are clearly of the opinion that the signing of the petition by one of the plaintiffs does not operate as a release of the petitioner’s claim for damages resulting from the new grade.

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