#### Williams, Appellant, vs. City of Hudson, Respondent.

*December 5, 1906*

January *8, 1907.*

*Dedication: Streets: XJ,se of abutting lot as lateral support: Estoppel:*' *Pleading.*

1. Consent of plaintiff that the defendant city deposit earth upon the margin of her lot for the purpose of furnishing lateral support for the street constitutes a dedication of her property to that extent for a proper public purpose, and she is therefore es-topped from requiring the city to remove the earth so deposited ■or from claiming damages caused thereby.

*2982. In such, case allegations of the complaint, merely descriptive of the injury alleged to follow from an unlawful filling, are *held'*insufficient to state a cause of action for negligent construction of the grade on her lot, whereby damage was caused from the-flowage of water and the carrying of sand and other material onto her lot.

Appeal from, a judgment of tbe circuit court for St. Croix, county: E. W. HelMS, Circuit Judge.

*Affirmed.*

Tbe plaintiff is owner of a lot abutting on Third street in. tbe city of *Hudson.*In tbe year 1900 tbis street was graded by tbe proper authorities of tbe city of *Hudson.*Tbis resulted in raising tbe street grade above tbe level of plaintiff’slot, from about one foot at tbe northeast corner to about seven feet at tbe southeast corner. No retaining wall was built by tbe city to prevent tbe earth of tbe higher street grade from sliding onto tbe lot of plaintiff; but, when tbe grading was being done, the plaintiff and tbe city by its proper authorities-made an arrangement under which the city graded tbe street ■to its full width and to tbe line of plaintiff’s lot, and plaintiff' consented that tbe city place earth upon tbe margin of her-lot in such quantity and in such a way as to form a lateral support for tbe earth of tbe street as so raised and graded. Tbis condition continued until August, 1904, when plaintiff' notified and demanded of tbe city authorities that they remove tbe earth so deposited upon her lot inside tbe margin of tbe street as and for a lateral support of tbe street as-graded. Tbis the city has refused to do, and she demands-damages from tbe city for tbe injury to her use of tbe property consequent upon leaving tbis filling on her lot. Notice of tbe claim for such damages Avas presented to tbe common council and tbe claim Avas disalloAved. Tbe defendant aA^ers that the plaintiff gave permission for tbe deposit of tbe earth upon her lot along tbe margin of tbe street; that earth-Avas deposited upon her lot in the manner alleged by her pursuant to such permission and without her objection at that time; and that the city has left tbe earth so deposited on her-*299lot as a lateral support to the street. The case was tried before the court and jury. The jury found, in effect, (1) that plaintiff granted permission to the city to deposit earth upon and along the margin of her lot at the time the street was graded, and that this earth furnishes a lateral support for the street; (2) that the city so deposited this soil and earth upon her lot in reliance upon her permission and assent; (3) that plaintiff’s damage from having such filling remain on her lot is $250. The court held that the plaintiff had established no cause of action and awarded judgment in defendant’s favor for its costs. This is an appeal from such judgment.

*John L.*Gleason, attorney, and *R. M.*Bashford, of counsel, for the appellant.

*A. J.*Kinney, city attorney, for the respondent.

Siebecker, J.

The plaintiff alleges that in the year 1900, when the city graded the street on which her property abuts, she gave the city permission to deposit the soil and loose earth upon her lot. The evidence contained in the bill supports the jury’s finding that plaintiff and defendant’s officers, at the time the grading of the street was undertaken, agreed that the city was to fill in and upon plaintiff’s lot along the street to the height of the grade of the street and thence sipping to the natural grade of her lot, that she permitted this grading upon her lot to be done without objection, and that, although the street superintendent deemed the amount sufficient for the purpose, she requested that additional soil be so deposited. The effect of this transaction must control plaintiff’s rights in this controversy. She now seeks to compel the city to remove this filling from her lot and thus take away the lateral support of the street grade, which was placed there with her permission and assent; and in default of such removal that, she, as owner of the premises, be allowed compensation for any damage it may cause her.

*300Her ownership of the lot is in no way disturbed, and as such owner she may exercise as full control of it, up to the margin of the street, as before the lot grade was changed by this filling. No interference with her use of the lot in its altered grade has been attempted or contemplated. The only inquiry is whether, plaintiff can rcquii’e the city to remove the earth deposited on her lot under the circumstances of this case. To require the removal of the filling, by taking away the lateral support secured by filling plaintiff’s lot under the arrangement admitted in her complaint and shown by the evidence, would result in a destruction of a part of the street as graded in conformity to it. It is obvious that the parties contemplated that the filling of plaintiff’s lot to the height of the grade of the street was for the purpose of supporting the earth of the street as filled and graded. Plaintiff’s consent to the filling of her lot for this purpose, the city’s acceptance of the privilege, and its enjoyment to this time constitute a gift of the use of her lot to the public for maintaining a lateral support of the street in the manner agreed to by the parties. . It is in nature and effect a dedication of her property for a proper public purpose, namely, the maintenance of the street. When property has been so devoted by the owner in fee, such use cannot be revoked by the owner. In *Connehan v. Ford,*9 Wis. 240, the court, speaking on this subject, observes:

> “The public do in fact acquire an interest in lands. . . . It is not supported upon the ground that it is a *grant,*but because the law considers it in the nature of an estoppel *in pais,*which debars the owner from recovering it. The law does not presume a *grant,*but rather the contrary, nor does it deprive the owner of his title to his land; but, while the dedication continues, says to him that he shall not, in violation of good faith to the public and by dishonest and immoral acts, assert his right of possession to the exclusion of the public.”

Under the facts and circumstances it necessarily follows that plaintiff is precluded from now changing her position *301in relation to tbe right of maintaining this filling, where it was placed, in reliance on her promise and assent, for permanently improving the street as contemplated by the parties at the time the arrangement was adopted between them and carried out. These conclusions follow from plaintiffs admitted conduct in giving the city the right to fill in her lot. This renders immaterial the exception urged to the reception and exclusion of testimony.

The claim that the court erred in ruling that the complaint does not state a cause of action for negligent construction of the grade on her lot, thereby causing her damage from the flowage of water and the carrying of sand and other material onto her lot, is not maintained. It is plain that the allegations relied on are not sufficient to state such a cause of action. They were evidently intended by the pleader, as they in fact are, to be descriptive of the alleged injury that the filling is unlawfully on her property, and thus causes her injury in these respects.

Judgment was properly awarded defendant for its costs, and disbursements.

*By the Qourt.*— Judgment affirmed.