Hamilton v. City of Fond du Lac

40 Wis. 47

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Lyon, J.

That the acts complained of were committed by or under the authority of officers and agents of the defendant city, and that such acts were trespasses, is not denied; and the material question to be determined is, whether the city is liable therefor.

The principle upon which the answer to this question depends was laid down by this court in Hurley v. Texas, 20 Wis., 634, and in Squiers v. Neenah, 24 id., 588, to the effect that if the trespass complained of is within the general authority of such officers or agents, if they had authority to act on the general subject matter, and acted in good faith, with an honest view to obtain for the public a lawful benefit or advantage, the city is liable for their trespass. In thus holding, the court adopted the rule on this subject laid down by Shaw, C. J., in Thayer v. Boston, 19 Pick., 511. The same rule was sanctioned by the New York court of appeals in Lee v. Sandy Hill, 40 N. Y., 442.

In addition to abating a nuisance, tbe effect of executing the ordinance of 1867 was to alter, straighten and widen the channel of the-stream. "When the contracts were let for doing the work, and when the work was done, the common council had power “ to straighten, widen, change and alter, and regulate and improve the bed, current or channel of either branch of the Eond du Lac river.” P. & L. Laws of 1867, ch. 124 (p. 288). Moreover the council has always been clothed with power to aba'te public nuisances within the city. Hence, in enacting and executing the ordinance of 1867 the council acted within the scope of its general powers, although irregularly, and it cannot be successfully denied that the council so acted in perfect good faith, in the belief that it was exercising a lawful power for the public good. We are clearly of the opinion that, within the rule above stated, the city is liable in this action for the damages resulting to the plaintiff from the execution of the ordinance of 1867. See Crossett v. Janesville, 28 Wis., 420.

It is claimed that the damages awarded by the court are unwarranted by the testimony, and the learned city attorney argued this proposition with much earnestness and ingenuity. We find testimony in the record, however, which sustains the award of damages; and we are unable to say that there is a preponderance of evidence against it.

Upon the whole ease we conclude that the judgment of the circuit court should not be disturbed.

By the Gov/rt. — Judgment affirmed.