#### City of Superior, Appellant, vs. Industrial Commission and another, Respondents.

*March 26*

April *13, 1915.*

*Municipal corporations: Power of park commissioners to care for parts of streets: Statute construed: Death of worlcman: Compensation: Liability of city: Proper defenses.*

1. Although sec. 925 — 171a, Stats, (ch. 493, Laws of 1907) — giving to park commissioners control over and power to care for that part of public streets lying between the curb and sidewalk,- — is incorporated into the general city charter law (ch. 40a), it is nevertheless expressly made applicable to all cities, and sec. 925 — 2 of that chapter must he restricted accordingly.

*2.*A park caretaker who, under the authority of said sec. 925 — 171a and a city ordinance, had been directed by the park commissioners to mow the grass upon that part of a street lying between the curb and sidewalk, and who came to his death from an injury accidentally sustained while so doing, was “performing service growing out of and incidental to his employment,” within the meaning of sec. 2394- — 3, Stats. 1913, and compensation was properly awarded to he paid by the city to the widow.

3. It was not improper or unconscionable for the city to defend against such claim on the ground that the work being done by the deceased was unauthorized and beyond the power of the park commissioners or council.

Appeal from a judgment of the circuit court for Dane •county: E. Ray SteveNS, Circuit Judge.

*Affirmed.*

August Frederick came to Ms death from a personal injury be received while in the employ of the appellant as a park ■caretaker. He was engaged to work by the administrative officers in charge of the public parks of the city. He was mowing grass with a lawn mower outside of the park area and in that part of the street belonging to private property, subject to the public easement. It had been customary for the caretaker to do such work, and the deceased was engaged therein by direction of the park commissioners. Their general jurisdiction under the ordinances of the city was “to *542bave control and supervision of the public parks of the city.” There was also an ordinance which provided as follows:

“All grass plots or lawns between the sidewalk and the curb of all newly improved streets . . . are hereby transferred to and placed under the supervision of the board of park commissioners. . . . They shall sow grass and keep the grass cut on such lawns, grass plots, and parkways and maintain the same in proper condition. . . . They are hereby given power and authority to preserve grass plots and parkways in proper and sightly condition and to employ suitable help for that purpose and charge the same to the park fund.”

Under such authority the commissioners directed deceased to mow the grass in the particular place where he was iujured. It was within the field covered by the city ordinance. The trial court held that the work was within the scope of the work which the city was authorized to perform under sec. 925 — 171a of the Statutes, referring thereto thus:

“See. 925 — 171a of the Statutes expressly confers power to care for such parkings as that on which the deceased was at work when injured. The statute is not limited to parkings or paved streets, but applies to all ‘public streets.’ It expressly confers upon cities ‘jurisdiction and control for park purposes over that part of public streets lying and being between the curb and the sidewalk.’ The word ‘curb’ is here used to designate the line that marks the boundary between the grass plot and the part of the street that is devoted to public travel.. It designates the line that checks or holds back public traffic and keeps it off the grass plot. The conclusion follows that the city had power to care for the grass plot at the place where the deceased was injured and that the award of the *Commission*must be affirmed.”

The *Industrial Commission*held that the case was within the Workmen’s Compensation Law and awarded compensation to the widow of the deceased under such law. The award was sustained on appeal to the circuit court for Dane county.

Eor the appellant the cause was submitted on the brief of *T. L. McIntosh*and *II. V. Card.*

They contended, *inter*alia> *543that the work which Frederick was doing was not only unauthorized, hut beyond the power of the park commissioners or council. The city does not own the street in the sense that it could improve it or work it as its own. *Goodall v. Milwaukee,*5 Wis. 32; *Milwaukee v. M. & B. B. Co.*7 Wis. 85. The title of the lotowner extends to the center of the street, subject to the public use thereof as a street, which is the dominant interest. *Hundhausen v. Bond,*36 Wis. 29; *Papworth v. Milwaukee,*64 Wis. 389, 25 ÍÑT. W. 431; *Chase v. Oshkosh,*81 Wis. 313, 51 1ST. W. 560; *Andrews v. Youmans,*78 Wis. 56, 37 N. W. 304. A public street cannot be used for any other purpose than for public travel without compensation to the lotowner. *Lange v. La Crosse & B. B. Co.*118 Wis. 558, 95 N. W. 952. Subject to the state constitution, statutes, and municipal charters, municipal control over streets is quite generally limited to maintaining them for the purpose for which they were established. 3 McQuillin, Mun. Corp. § 1311.

Eor the respondent *Industrial Commission*there was a brief by the *Attorney General*and *Winfield W. Gilman,*assistant attorney general, and oral argument by *Mr. Gilman.*

They argued, among other things, that the city had authority to keep these grass plots mowed. Laws of 1891, ch. 124, sec. 35, sub. 30, 55; Laws of 1891, ch. 124, secs. 116, 212; 28 Cyc. 853; 27 Am. & Eng. Eney. of Law (2d ed.) 119; 3 Dillon, Mun. Corp. (5th ed.) § 1150; *Dougherty v. Horse-heads,*159 1ST. Y. 154, 53 N. E. 799; *In re Bushwick Ave.*48 Barb. 9; *Curran v. Guilfoyle,*38 App. Div. 82, 55 N. Y. Supp. 1018; *Cox v. Sammis,*57 App. Div. 166, 68 N. Y. Supp. 203; *Murphy v. Peoria,*119 Ill. 509, 9 1ST. E. 895; *Thompson v. Highland Park,*187 Ill. 265, 58 N. E. 328; *Dotey v. District of Columbia,*25 App. D. O. 232; *Martin v. Williamsport,*208 Pa. St. 590, 57 Atl. 1063; *Boyd v. Milwaukee,*92 Wis. 456, 466, 66 N. W. 603. The city had the authority to construct and maintain boulevards. Laws of 1891, ch. 124, sec. 93. The street where the accident hap*544pened was a boulevard. 5 Cyc. 860; 4 Am. & Eng. Ency. of Law (2d ed.) 754; Cent. Diet. tit. “Boulevard;” Webster’s New Internat. Diet. tit. “Boulevard;” *West Chicago Park Comm’rs v. Farber,*171 Ill. 146, 160, 49 N. E. 427; *Howe v. Lowell,*171 Mass. 575, 581, 51 N. E. 536 ; *Burridge v. Detroit,*117 Micb. 557, 76 N. W. 84, 85, 42 L. R. A. 684, 72 Am. St. Rep. 582; *People ex rel. Beaver v. Green,*52 IIow. Pr. 440, 445.

Eor the respondent *Josephine Frederick*there was a brief by *Grace, Hudnall •& Fridley,*and oral argument by *George B. Iiudnall.*

They argued, among other things, that in the absence of any express authority in the charter the council had ample implied power to pass the ordinances in question. *McDonald v. St. Paul,*82 Minn. 308, 84 N. W. 1022; *Kleop-fert v. Minneapolis,*90 Minn. 158, 95 N. W. 908. The board of park commissioners had the power to and did employ deceased. So far as the city being liable is concerned, it is immaterial whether the board of park commissioners were authorized by either statute or ordinance to set deceased at the work he was engaged in at the time of the injury, provided that work was not expressly prohibited by law or did not involve moral turpitude. *Thomson v. Elton,*109 Wis. 589, 85 N. W. 425; *Pice v. Ashland Go.*114 Wis. 130, 89 N. W. 908; *Schneider v. Menasha,*118 Wis. 298, 95 N. W. 94; *Hitchcock v. Galveston,*96 U. S. 341, 351; *Salt Lake Gity v. Hollister,*118 U. S. 256, 6 Sup. Ct. 1055; *Winfield v. Peeden,*8 Kan. App. 671, 57 Pac. 131; *Bunker v. Hudson,*122 Wis. 43, 54, 99 N. W. 448; *Hollman v. Platteville,*101 Wis. 94, 76 N. W. 1119.

Maeshall, J.

It was perfectly proper for appellant, under advice of its counsel, to defend against the claim of the plaintiff upon any ground which such counsel deemed legitimate. We perceive no evidence of bad faith in the matter or justification for characterizing the defense put forth as *545unconscionable. Whether it be a good defense is quite another question.

n It seems to be conceded that if it were competent for the municipality to have done at its expense the work in which deceased was engaged when he was injured, the judgment is right.

The trial court decided the suggested question in respondents’ favor on the faith of sec. 925 — 111 *a,*Stats., which provides that:

> “The park commissioners of all cities shall, under the direction of the common council, have the same jurisdiction and control for park purposes over that part of public streets, lying and being between the curb and the sidewalk as such commissioners have over the public parks, and may cause trees to be planted and cared for, and the proper surface to be sodded, planted or otherwise cared for, in the same manner park lands are cared for.”

The quoted section was enacted in ch. 493, Laws of 1907. That was an act of general nature as to the'cities of the state. So far as incorporation thereof into ch. 40a, which is mainly devoted to the general city charter law, would indicate that it applies specially to cities incorporated under such law or which have adopted such law, sec. 925 — 2 of such chapter must be regarded as restrained so as not to modify the general power which was granted later and, unmistakably, was made to apply to all cities.

It seems to be conceded that if the foregoing is correct the judgment appealed from is free from infirmity, so we need not consider any other question discussed in the briefs of counsel.

*By the Court.-*— -The judgment is affirmed.