#### Herzer vs. The City of Milwaukee.

Municipal Cobpoeations. *Waiver of damages for change in grade of street.*

The common council of a city having ordained a change of the grade of numerous streets, in a part of the city hi which plaintiff’s lots were situate, and having executed the ordinance hi part, plaintiff, who was suffering serious special injury from such *partial*execution, in order to relieve *361himself from such injury, signed] a petition to the common council to have the street fronting Ms lots completed according to such grade. *Held,*that this was *not a waiver*of Ms right to damages for such change of grade.

APPEAL from the Circuit Court for *Sheboygan*County.

Action for damages caused by a change of grade of the street in front of certain lots owned by plaintiff in the defendant city. The facts are undisputed, and are substantially as follows: In 1869, the common council of Milwaukee passed an ordinance changing the grade of the streets surrounding some fifty blocks lying in a compact form adjacent to each other. Block 116, in which the plaintiff owned two lots, was one of these. In 1870, pursuant to such ordinance, the streets bounding block 116 on the north and south, and other streets east of said block, but not adjoining it5 were worked to the new grade. Certain owners of lots in that block on both sides of plaintiff’s lots voluntarily filled the street bounding the block on the east, in front of their respective lots, to such new grade, without objection by the city authorities. The results were, that the plaintiff had no outlet from his lots by way of the street in front of them without ascending an abrupt grade four feet high; and a certain natural outlet for surface water from adjacent high grounds to the river was obstructed, so that such water collected and remained upon the plaintiff’s lots. Such being the condition of the grade and of his lots, the plaintiff, in’ 1871, at the request of a member of the board of public works of the city, and of his neighbors, signed a petition to the common council that the street on which his lots fronted be graded for the distance of three blocks, including the portion thereof in front of his lots, to the grade established in 1869. Several other resident owners of lots abutting on the proposed improvement also signed such petition, and the street was graded in accordance therewith.

The damages for which the action was’brought were caused by such grading.

*362Tbe court refused to charge tbe jury, as requested by tbe defendant, that, by signing such petition, plaintiff waived his claim for damages; and plaintiff bad a verdict and judgment for tbe amount of damages wbicb it was admitted be bad sustained by reason of tbe change of grade. Defendant appealed from tbe judgment.

*L. S. Dixon,*for appellant:

Whether a petition was essential in altering tbe established grade of tbe street, or not, tbe act of tbe plaintiff in signing it was voluntary, and be will not be beard to allege that be has suffered injury. Broom’s Leg. Max., 268; *Ha/i'nojo v. Bcvyley,*6 E. & B., 224; 88 E. O. L., 218, 224; *Ferguson v. Bandram,*1 Bush, 548, 565; 5 id., 230; *Wild v. Deig,*43 Ind., 455; *State v. Hudson Gity,*34 N. J. Law, 25, 541; *Burlington v. Gilbert,*31 Iowa, 356; *Van EooJe v.Whit-loelc,^*Wend., 43; *Earber v. Eellis,*22 Wis., 215; *Sex-smith v. Smith,*32 id., 299, and cases there cited; Laws of 1874, cb. 184, sub-ch. YII, sec. 8.

*James G. Jenloms,*for respondent:

1. Tbe charter of tbe city provides for tbe payment of all damages arising from tbe alteration of an established grade; and tbe ordinance under wbicb this improvement was made, inevitably carried with it, as a part thereof, this provision of tbe charter, and entitled tbe plaintiff to bis damages. 2. Tbe damage to tbe plaintiff’s lots was net in consequence of tbe petition, but bad accrued prior thereto, by reason of tbe changed grades in front of adjoining lots on both sides. *Columbus v. Eydraulic Go.,*33 Ind., 435. 3. To petition for tbe execution of tbe ordinance, wbicb was passed without plaintiff’s consent, and partly carried out, was simply saying that, considered as a whole with all its incidents and legal consequences, including tbe liability for damages, tbe act was right and proper and a desirable public measure; and did not in volve in its consequences a release by tbe petitioner of all claim for damages. 4. Tbe petition was not voluntary. *363Tbe plaintiff was already suffering injury from tbe partial execution of tbe ordinance, and tbe object of tbe petition was to prevent further injury. Obtained under such circumstances, it cannot be tortured into a release of tbe statutory damages. Broom’s Leg. Max., 202, 208.

LyoN, J".

Tbe only question to be determined on tbis appeal is, Does tbe signing of tbe petition, by tbe plaintiff, to have tbe street in front of bis lots worked to tbe grade of 1869, operate as a waiver of bis right to recover damages for tbe injury to bis lots caused by such grade? "We think tbis question must be determined in tbe negative. Tbe maxim, *volenti, non fit vnjuria,*which is invoked to defeat a recovery of such damages, is not applicable, because, under tbe circumstances of tbe case, such signing cannot, in any just sense, be said to be a willing or voluntary act. T Story’s Eq. Jur., § 302. And herein lies tbe distinction between tbis case and tbe cases cited by tbe learned counsel for tbe appellant, in which tbe maxim has been held applicable. It is believed that in each of them tbe act which was held to operate as an estoppel was purely a voluntary act.

Tbe plaintiff was suffering serious special injury by reason of tbe partial execution of tbe grade which tbe city authorities bad established without bis consent, and it would be simply monstrous to bold that be could not ask tbe city to relieve Mm from such injury by completing tbe grade in front of bis lots, or ordering it to be done, without thereby waiving or surrendering bis right to recover tbe damages caused by tbe change of grade. Tbe above maxim cannot properly be made tbe instrument of such injustice. How tbe case would have stood bad the plaintiff petitioned tbe council in tbe first instance to establish tbe grade of 1869, or to *commence*work upon tbe new grade, we do not here determine. We only decide that under tbe undisputed facts of tbe case, as disclosed by tbe record, tbe plaintiff, by signing tbe petition, "did not *364waive bis right to damages for the injury to bis lots caused by working tbe street in front of them to the grade established in 1869.

*By the Court.*— Judgment affirmed.