Feiten v. City of Milwaukee , 47 Wis. 494 ( 1879 )

Lyoít, J.

The right of the common council to discontinue and abandon the condemnation proceedings which it had instituted, is not denied by the learned counsel for the plaintiff. He also concedes that the law governing the case is correctly stated by Judge Dillon in his treatise on municipal corporations, as follows: “ "Where proceedings are riglitfnlly discontinued, the land owner cannot have a mandamus to collect, nor recover by action the sum that may have been estimated by commissioners; yet he may have a special action for damages for any wrongful and injurious acts of the corporation in the course of the proceedings.” Section 474. This is doubtless a correct statement of the law, and expresses the limits- and conditions of municipal liability in such cases.

The acts must be both wrongful and injurious, or there is no liability. If a given act done in the course of the proceedings be wrongful but not injurious, or if it be injurious but not wrongful, the municipality is not liable to respond in damages therefor. If there be injury without wrong, it is dam-num, absque injuria. Any other rule would render the institution of proceedings looking-to the condemnation of property, for public improvements exceedingly perilous to the municipality.

This action is for the loss of rents caused by the condemnation proceedings before the same were abandoned. The only averment in the first count of the complaint, which is claimed to charge a wrongful act-, is that the common council unnecessarily delayed to go on with the proceedings after the jury reported that it was necessary to take the plaintiff’s land.

The jury was selected May 3$ 1875. The complaint does not show when they viewed the premises or reported to the council. The council confirmed the report October 4, 1875. The word “ unnecessarily,” as used in the complaint, has but little significance. Whether the delay was necessary or not is to be determined from the facts in the case, -and this complaint fails to state facts showing that it was unnecessary. There is -nothing alleged to show that the meeting of October 4th was not the first meeting of the council at which action could lawfully be taken on the report of the jury.

But we should hesitate to hold that mere delay in such a case, although we might think it was unnecessarily pro trac ted\ would constitute a ground of action. There miist of necessity be a large discretion vested in the common council as to when it' will take decisive action upon any proposition. Many circumstances might intervene to delay action, and it would be difficult for the court to say how much or how little time that . body ought to take or may reasonably take for deliberation before final action.

The proceeding was in the nature of an action to divest the plaintiff of title to and possession of property. In re Anthony St.-, 20 Wend., 618. If an ordinary action of ejectment is brought in good faith and finally discontinued, the defendant cannot maintain an action for damages against the plaintiff, although the latter had unreasonably delayed to prosecute the ejectment suit, and thus had menaced the title of the defendant longer than was necessary. No good reason is perceived why the same rule is not applicable here. Such an assault upon the title of another, to be actionable, must be made maliciously and without probable cause. If so made, it may amount to slander of title and be actionable, and the damages may be increased by unnecessary delay in prosecuting the action. The rule is that “language concerning a thing is actionable when published maliciously, i. e., without lawful excuse, if it also occasions damage to the owner of the thing.” Townshend on Slander and Libel, 335, § 204. See, also, Akerly v. Vilas, 23 Wis., 207. In this case the elements of malice or wrong intention and want of probable cause are entirely wanting. In the absence of positive statute, it cannot be correctly said that mere delay in the prosecution of a suit or proceeding is unlawful.

' It may here be observed that the plaintiff would have been entirely safe to have leased her premises with a covenant to the tenant for quiet enjoyment. Then, had the premises been taken by the city during the term, all proper damages which ^she might • have been required to pay for the breach of such covenant would have become a valid claim against the city. Such damages would have been a proper item in the amount of damages awarded her for the taking of her property. This is the rule established in Driver v. Railroad Co., 32 Wis., 569. Such a covenant would probably have removed some, if not most, of the difficulties in the way of leasing the premises pending the comdemnation proceedings.

In Van Valkenburgh v. Milwaukee, 43 Wis., 574, the city had condemned the plaintiff’s land for the purposes of a public park, had taken possession thereof, and had done vai’ious acts thereon injurious to the freehold. Afterwards the legislature authorized the city to abandon the condemnation proceedings, and it abandoned them. It was held that the plaintiff could recover damages for such injuries, and for the loss of possession. When the city abandoned those proceedings and restored the land it had actually taken, to the owner, the plainest principles of justice required that it should compensate him for the injuries which it had done to his possession and freehold. This case is essentially different, and demands the application of a very different principle. It is only the ordinary case of incipient proceedings to condemn property to the ptiblic use, abandoned before consummation; and in all such cases if the city does not exceed its lawful authority, to the injury of the owner, pending the proceedings, it cannot be held liable for damages which the owner may incidentally sustain by reason of the proceedings. Such is the tenure by which all property subject to be taken for public use is held.

We conclude that the first count fails to allege any wrongful act or omission on the part of the city, in respect to the condemnation proceedings, and hence that it fails to state a cause of action.

The only wrongful act alleged in the second count of the complaint is the entry upon the premises and the attempted sale of the house. We have been referred to no provision in the charter of Milwaukee now in force authorizing such entry and sale. We assume the entry to have been unlawful and the attempted sale void. The entry may have given the plaintiff a cause of action guare clausum fregit, but this is not such an action. We are unable to perceive how such entry and attempted sale could possibly affect the rental value of the premises; and the redaction in such rental value is the gravamen of this action.

We ai’e of the opinion, therefore, that the complaint fails to state a cause of action.

By the Court. — Order affirmed.