#### Willmer, Respondent, vs. Goebel, Appellant.

*December 18, 1908*—

January *5, 1909.*

*Municipal corporations: Defects in sidewalks: Liability of abutting owner: General city charter: Adoption of subchapter: Repeal of provisions of special charter.*

The charter of the city of Fond du Lac (sec. 1, subch. 18, ch. 152, Laws of 1883) makes it the duty of abutting owners to keep in repair sidewalks in front of their premises, and then imposes a liability for failure to comply with that duty. The common council of that city, by ordinance, adopted subch. XIX, ch. 40a (secs. 925 — 201 to 925 — 207), Stats. (1898), pertaining to sidewalks, “in lieu of the provisions now existing upon said subject in the special charter governing said city.” Under-the provisions of .sec. 926, Stats. (1898), a city desiring to adopt a portion of the general charter law may adopt any section or chap*420ter thereof “in addition, to or in lieu of” the provisions of its special charter. *Held*that, by reason of the passage of such ordinance, sec. 1, subch. 18, of the special charter of the city of Fond du Lac was repealed, and that after such repeal' no. right of action could arise in favor of an injured party against a property owner by reason of a defect in a sidewalk abutting on-his premises.

Appeal from an order of the circuit court for Fond du Lac county: Chesteb A. Fowleb, Circuit Judge.

*Reversed.*

The appeal is from an order overruling a general demurrer to the complaint. The action is brought to recover damages from the defendant by reason of an injury sustained on account of an alleged defective sidewalk which it was the duty of the defendant to keep in a proper state of repair. The plaintiff relies upon the provisions of the special charter of the city of Fond du Lac for authority to maintain the action against the defendant as abutting owner. If the provisions of such special charter are still in force, it is conceded that the action is properly brought against the defendant. It. is the contention of the defendant that the city of Fond du Lac, after adopting certain portions of the general charter law relating to sidewalks, repealed that portion of the special charter of the city upon which plaintiff relies to maintain her action.

For the appellant there was a brief by *Doyle & Ha-rdgrove,*and oral argument by *T. L. Doyle. ¡*

For the respondent there was a brief by *Morse & Williams,*and oral argument by *R. L. Morse.*

BabNes, J.

By ch. 152, Laws of 1883, the charter of the city of .Fond du Lac was revised. It was subsequently amended in various particulars, but such amendments do not. affect this case except in one particular, which will be referred, to later. Such charter contained provisions empowering the common council of the city to order sidewalks to be laid, repaired, and relaid upon such streets as it deemed necessary at the expense of abutting owners, and, in the event *421of the failure of such owners themselves to make such improvements within a stated period after they were notified so to do, the city was authorized to do the work and charge the •expense against the abutting property by way of a special tax. With one exception, practically all of the important provisions of the charter relating to sidewalks are contained in subch. 11 of said ch. 152. The exception referred to is see. 1, subch. 18, of the charter, and reads as follows:

> “Every corporation, association, or society, owning, and each and every owner of 'any lot, part of lot, or parcel of land, in said city, upon, along, in front of, or adjoining which there shall have been or shall hereafter be placed, constructed, or laid, any walk, or sidewalk, for the use or accommodation •of the public to walk upon, shall at all times keep and maintain said walk, or cause the same to be kept and maintained in a safe, convenient and effective condition, for the use of any person or persons desirous to walk thereon; and any person who may have been or shall hereafter be injured by reason of the unsafe or defective condition of such walk or sidewalk, shall have the right to maintain an action in any court of record against such owner or owners, for all damages or injury of every nature, resulting to such person or persons by reason of the neglect of such owner to maintain, or caused or cause to be maintained, such walk or sidewalk in a safe, ■convenient and effective condition; provided, that no action shall be maintained against such owner, unless the same be •commenced within one year from the time such injury shall have happened to the person so claiming such damages.”

The requirement of this section that abutting owners •should keep the sidewalks adjacent to their property in an •efficient state of repair, and that they should be primarily liable for any injury occasioned by failure so to do, is too plain to admit of doubt or equivocation. *Devine v. Fond du*Lac, 113 Wis. 61, 88 N. W. 913. Sec. 926, Stats. (1898), provides that any city operating under a special •charter -

> “may adopt the provisions of any subchapter, section or 'subdivision of any section of ch. 40a [general charter law], and may exercise any power or franchise thereby conferred upon *422cities organized under said chapter, in addition to or in lieu of the provisions of its special charter and the powers and franchises therein specified, by an ordinance adopted for that purpose, . . . and when adopted as herein prescribed such ordinance shall operate to that extent as an amendment of such charter.”

In *Hay v. Baraboo,*127 Wis. 1, 17, 105 N. W. 654, 660, this court held that “the necessary effect of adopting a part of the general charter by a city existing under a special char- ' ter is to place such city *pro ianto*under the general law as the same may be from time to time changed.”

By its ordinance published July 11, 1904, the city of Fond du Lac adopted a portion of the general charter law. By sec. 1 of the ordinance, secs. 925 — 172 to 925 — 200 were adopted in lieu of the then existing provisions of the special charter on the subject of city improvements. By sec. 2 of such ordinance, subeh. NIX, ch. 40a (secs. 925 — 201 to-925 — 207), pertaining to sidewalks, and all acts amendatory thereof, were “adopted in lieu of the provisions now existing upon said subject in the special charter governing said" city.” Secs. 925 — 201 to 925. — 207 contain a complete-scheme for the building and repairing of sidewalks. The width, the grade, and the construction material may be prescribed by the proper city officers. It is made the duty of the abutting owner to build or rebuild the walk adjacent to his property at his own expense when ordered so to do by . the city authorities. In the event of his failure or refusal to comply, the city is authorized to construct the walk and the expense thereof is chargeable against the abutting property. Secs. 925 — 201 to 925 — 207, aforesaid, were originally de~ ■ fective in not imposing any duty upon the lotowner to make such repairs as did not render necessary the construction of an entirely new walk and in not empowering the board of' public works to make the repair until after the lapse of more-than ten days from the time the walk became defective. To-supply an apparent omission from the law in this regard, *423sec. 925 — 205 was amended by cb. 173, Laws of 1899, and by cb. 159, Laws of 1905, and again by sec. 2, cb. 674, Laws of 1907. Tbe law of 1907 did not become effective until after tbe occurrence of tbe injury complained of, but for tbe purposes of tbis case tbe amendment of 1907 is not material. Tbe amendment of 1905 provided tbat “in all cases where tbe sidewalk shall be out of repair, should such portion thereof be in such condition tbat tbe board of public works do not deem it necessary to order tbe removal of tbe whole thereof, it shall be tbe duty of tbe board of public works to repair tbe same.”

Tbe principal difference between tbe provisions of tbe special charter of tbe city of Eond du Lac pertaining to sidewalks and those contained in tbe general charter law, which were adopted by tbe city, in so far as tbe same are material in tbis case, would seem to be tbat under tbe special charter tbe lotowner was charged with tbe duty to keep and maintain tbe sidewalk adjacent to bis property at all times in a safe, convenient, and effective condition, and was made primarily liable to persons suffering injury by reason of his failure to comply with such requirements, while tbe general charter imposed upon tbe lotowner tbe burden of building a sidewalk in the first instance, or rebuilding such walk when it became necessary and be was ordered by tbe proper authorities so to do, but imposed upon tbe city the duty of making needed repairs where a part only of the walk was defective, and no liability was imposed upon tbe property owner for damages resulting from bis failure to build, rebuild, or repair bis sidewalk..

It will be observed tbat under tbe provisions of sec. 926, heretofore quoted, a city desiring to adopt a portion of the general charter law might adopt any section or chapter of tbe same “in addition to or in lieu of” the provisions of its special charter. Tbe city of Eond du Lac adopted tbe provisions of tbe general charter law relating to sidewalks “in lieu” of the *424provisions of its special charter existing upon the subject, and not “in addition” thereto. Certainly sec. 1 of subch. 18 of the special charter of the city contained a provision upon the subject of sidewalks, and there would seem to be no escape from the conclusion that at least so much of said sec. 1 as imposed upon the lotowner the duty of keeping the sidewalk adjacent to his property at all times in a convenient and effective condition has been superseded and repealed by the adoption of the provisions of the general charter law upon the subject. The only doubtful question is whether the portion of said sec. 1 pertaining to the liability of the abutting owner remains after the part prescribing the duty of the lot-owner in reference to sidewalks is eliminated.

Said sec. 1 is a consistent act taken in its entirety. It first prescribes a duty and then imposes a liability for failure to comply with the duty. The duty prescribed by that section is not the duty prescribed by the general charter law in at least two particulars. In the event of a part only of the sidewalk becoming defective, as when a plank is broken in a walk that is otherwise in good condition, under the general charter law the duty of making the repair seems to be lodged with the city and not with the abutting owner. Neither, under such charter, is there any duty imposed upon the abutting owner to build an entirely new walk, no matter how defective the old one has become, until he is ordered iso to do by the city. If the liability proviso of the special ^charter still exists, then the abutting owner may be held liable for the negligence of the city in failing to perform a duty which the law commands it to perform. Such owner may also be held liable for an injury which is not the result. of his negligence, in that no legal duty is imposed upon him to make certain repaii’s, or even to rebuild his walk, in the absence of a direction from the city council.

The section of the special charter referred to is so punctuated that it makes but one complete sentence. The liability. *425portion of it seems to be reasonably dependent upon tbe part wbicb imposes tbe dnty to keep in repair. It would be a forced construction to bold tbat one part bas been repealed .and tbe other retained. It is doubtful if tbe liability part •of tbe statute would have been enacted in tbe absence of tbe part thereof creating and defining tbe duty. Tbe entire section is certainly a provision of the special charter of tbe city •of Eond du Lac existing upon tbe subject of sidewalk's.

"When tbe provisions of tbe general charter law relating to •.sidewalks are adopted in lieu of tbe provisions of tbe special ■charter on such subject (and one of tbe provisions of tbe special charter makes tbe abutting owner liable for injuries sustained by reason of a defect in a sidewalk adjacent to bis property), it seems logical enough to say tbat tbe statute creating tbe liability is a provision relating to sidewalks. Sec. 1 of subch. 18 of tbe special charter in its entirety, and tbe two ■component parts thereof, come fairly within tbe express terms of tbe ordinance wbicb adopts tbe provisions of tbe general charter law on tbe subject of sidewalks in lieu of tbe provisions contained in tbe special charter on such subject. Tbe conclusion follows tbat, by reason of tbe passage of tbe ordinance referred to, sec. 1 of subcb. 18 of tbe special charter of tbe city of Eond du Lac was repealed, and tbat after •such repeal no right of action could arise in favor of an injured party against a property owner by reason of such a defect in a sidewalk as is alleged in tbe complaint herein.

*By the Court.*— Tbe order of tbe circuit court is reversed, and tbe cause is remanded with directions to sustain tbe demurrer to tbe complaint.