#### Bekkedahl, Appellant, vs. Village of Westby and another, Respondents.

*September 14*

October *5, 1909*

*Villages: Street improvements: Powers of village board: Injunction: Pleading: Presumptions: Talcing of private*property.,

1. In an action to restrain a village from making certain street improvements pursuant to petition, it will he presumed on demurrer to the complaint, in the absence of allegations to the-contrary, that the village authorities are proceeding according, to law.

2. The general power in respect to streets and sidewalks conferred-upon the village board by subd. 11, sec. 893, Stats. (1898), includes the power to determine the width of the traveled track in a street.

3. Allegations in a' complaint that a village board intends and' threatens to compel plaintiff to build a sidewalk outside of the street and upon his residence lot, and that in order to do so-he will be deprived of his land without due process of law and without compensation, do not show a right to an injunction where it is evident from the facts pleaded that defendants-do not intend to compel plaintiff to build a walk by force or otherwise than by legal procedure regularly instituted and. carried on.

Appeal from an order of the circuit court for Vernon county: James O’Neill, Judge.

*Affirmed.*

Tbis is an appeal from an order sustaining a demurrer to-tbe plaintiff’s complaint. Tbe complaint alleges in effect that tbe plaintiff is, and bas been for many years, tbe owner of a certain lot used and occupied as bis residence in tbe defendant village, and wbicb abuts on La Crosse street, and' that plaintiff bas greatly improved tbe dwelling bouse upon-said premises, and that said property is of tbe value off $10,000; that in front of said residence and just inside of the-street line of said La Orosse street are two large shade trees, furnisbing shade to the dwelling bouse, and that there are-other and smaller trees, all standing within from two to sis *231feet of tbe street line, and that tbe plaintiff’s lot is about two feet bigber than tbe grade of tbe street at that point; that in tbe year 1901 tbe village board of defendant improved a portion of said street by macadamizing that part of said street covering tbe block lying next east of tbe block in wbicb plaintiff’s dwelling bouse is situate, wbicb improvement included tbe building of a stone curb and gutter on botb sides of said street; that while tbe improvement was under consideration, and on June 1, 1901, tbe village board by resolution fixed and determined tbe line of tbe curb, for said street at eight feet from tbe street line, and afterwards on June 21, 1901, changed tbe distance to nine feet, and on said last-named date fixed tbe line of the curb at nine feet from tbe street line; that pursuant thereto tbe curb on tbe north side of La Crosse street was built nine feet from tbe north line of said street and still remains there, and that no action has been taken by tbe village board of defendant changing or altering said curb line; that at tbe time of fixing said curb line tbe officers of said village designated and caused to be erected monuments to mark tbe curb line on tbe north side of said street in tbe block lying directly west of the block so macadamized, being tbe block in wbicb plaintiff resides, and tbe officers of defendant directed plaintiff to build a plank sidewalk in front of and abutting bis property, and so placed tbe same that tbe outer edge or line thereof would correspond to and be in line with tbe stone curb so fixed and built in tbe next adjoining block, and that plaintiff in good faith constructed in front of bis property a. plank sidewalk five feet wide, and placed tbe outer edge thereof on tbe curb line so designated, wbicb sidewalk has remained and has been continuously used for public travel until on or about tbe 12th day of October, 1908.

Tbe complaint then alleges that on tbe 23d day of June, 1908, tbe village board of defendant, acting upon a petition of tbe property owners along said street, decided to macadam*232ize that portion of said La Orosse street lying west of the block macadamized as before stated, extending from Main street, in defendant, village, to a point opposite the west end of plaintiff’s property, a distance of about nine and one-balf rods, and on tbe 25tb day of August, 1908, at a session of the village board, defendant awarded tbe contract of building a cement curb and gutter along both sides of said street to tbe defendant Olson, wbo bas entered upon said work and bas proceeded to. construct said curb and gutter; that on tbe 12tb day of October, 1908, tbe defendant *Olson,*acting, as plaintiff is informed and believes, under tbe verbal instruction of some of tbe individual members of tbe village board of defendant, entered upon tbe premises of plaintiff and destroyed and removed tbe plank sidewalk, and threatened and still threatens and intends to build and construct tbe cement curb and gutter about six feet inside of and north of tbe curb line designated in 1901 by tbe village board, so that all that portion of tbe roadway lying south of tbe stone curb, including tbe space occupied by plaintiff’s plank sidewalk, will be macadamized and thrown into tbe street for team travel, and plaintiff will be deprived of tbe use thereof for sidewalk and boulevard purposes. It is alleged, on information and belief, that tbe village board threaten and intend to compel plaintiff to build a six-foot cement sidewalk north of said curb and place tbe same inside and north of tbe present and true street line and upon bis residence lot, and that in order to so build tbe same plaintiff will be deprived, without due process of law and without compensation, of a strip of land" six feet wide and about 100 feet long; that if tbe present sidewalk space is appropriated by tbe public for team travel and tbe curb and gutter built on tbe line threatened, it will result in great and irreparable damage to plaintiff and be ruinous to bis property in tbe manner in which it bas been enjoyed and will permanently impair its future enjoyment; that tbe taking of said property will compel plaintiff to ex*233cavate the terraced portion of his front dooryard a depth of about two feet and sis feet wide and will necessitate the grubbing out of the shade trees in front of’ his property, and that such damages cannot be adequately measured in an action at law; that plaintiff verily believes that the action of the defendant *Olson*is through the order and direction of the trustees of defendant acting individually, and that the same is arbitrary, oppressive, and without authority of law; that said street was opened of the width of three rods upwards of fifty years ago, and has since been traveled such width, and that the distance between the true curb lines on either side of said street is upwards of fifty feet, which is entirely adequate for public team travel; that, unless enjoined, plaintiff fears defendants will carry out their threatened acts and build said curb on his land and thereby appropriate the strip aforesaid.

The prayer is that the defendant village and its officers and the defendant *Olson*and his servants be restrained and enjoined from building a street curb and gutter further north on said street than the line of the present stone curb on the north side of said street, or from interfering in any way with the strip of land five feet wide lying in front of and immediately abutting plaintiff’s premises, and for general relief.

The defendants demurred to. the complaint for want of facts sufficient to constitute a cause of action, which demurrer was sustained.

The cause was submitted for the appellant on the brief of *G. W.*Graves, and for the respondents on a brief signed by *'Lawrence Grimsrud*and *W. F. & A. G. Wolfe.*

KeewiN, *J.*

The substance of the complaint is set out in the statement of facts. The principal charge is that defendants are about to interfere with a part of a public street and that the village board is acting under a petition in so doing. There are no allegations in the complaint going to show that *234all tbe steps required by law were not taken in tbe proceeding to make tbe improvement. Tbe village having tbe right to improve tbe street, and it proceeding on petition to do so, it must be presumed that it is acting lawfully in tbe absence of any allegation to tbe contrary. Subd. 11, sec. 893, Stats. (1898), authorizes villages “to lay out, open, change, widen or extend roads, streets, lanes, alleys, . . . and to grade, improve, repair or discontinue tbe same or any part thereof; . . . to make, alter, widen or otherwise improve, keep in repair, vacate or discontinue sidewalks and crosswalks as provided in this act.” And sec. 905 provides tbe mode of procedure. There is nothing in tbe complaint showing or tend-' ing to show that these statutory provisions have been violated or that the defendants are not proceeding in accordance with them. The acts to be done under tbe contract with defendant Olson are to be done within tbe limits of tbe street. Tbe general power conferred by law on *the*village includes tbe power ,to determine the width of tbe traveled track. Elliott, Roads & S. § *451; State v. Morristown, S3*N. J. Law, 57; *Benson v. Waukesha,*74 Wis. 31, 41 N. W. 1017; *McCullough v. Campbellsport,*123 Wis. 334, 101 N. W. 709; *Damkoehler v. Milwaukee,*124 Wis. 144, 101 N. W. 706.

Stress is placed upon tbe allegations of tbe complaint to tbe effect that tbe village board “intend to, and threaten to, at once after tbe completion of said curb and gutter, direct and compel plaintiff to build a six-foot cement sidewalk north of said curb and compel him to place tbe same inside of and north of tbe present and true street line and upon bis residence lot, and that in order to so build tbe same plaintiff will be deprived, without due process of law and without compensation, of a strip of land six feet wide and about 100 feet long.” Tbe plain inference from tbe pleading is that if tbe plaintiff is compelled to build tbe walk it will be under legal procedure regularly instituted and carried on. He cannot be compelled to build otherwise, and there is no allegation *235that defendants intend to forcibly or otherwise build or en-. ter upon his premises aghinst his will. The allegation to' the effect that, in order to build, the plaintiff will be deprived of his property without compensation and without due process of law, is without force, because it is plain from the facts pleaded that plaintiff cannot be compelled to build and submit to a taking of his property without compensation, and that defendants do not intend forcibly to interfere.

But it seems wholly unnecessary to discuss the question. The complaint is barren of facts sufficient to entitle the plaintiff to equitable relief, and therefore the demurrer waa properly sustained.

*By the Gourt.*— The order appealed from is affirmed.