#### Smith vs. The City of Milwaukee.

It is u general rule that municipal corporations are- responsible for damages caused by the negligence or unskillfulness of their officers or agents in constructing public works.

Where by a neglect to provide proper sewerage in the grading of a street, a nuisance is created upon a private lot, the city may provide for abating it as for other similar improvementsand where the work for that purpose has been done by contract, in a regular manner, an assessment upon the lot of the cost of the work is valid' at law. *Weeks vs. The City of Milmiaukee,*10 Wis., 242, explained.

The owner of the lot has, in such a case, a right of action, against the city for the damages caused by the negligent construction of the street; and in case he enforces his legal remedy he waives his right in equity to restrain a sale of the lot for the assessment.

But if he neglects to resort to his equitable remedy in proper time, he may be held to have waived it, and to be remitted to his action for damages.

Where the lot owner has not sought the interference of equity, the contractor or his assignee cannot recover the amount of such assessment from the city on the ground that the lot owner may, if he chooses, prevent its being enforced.

Whether in constructing, streets across a marsh, any system of sewerage would be effectual to prevent stagnant water from afterwards accumulating on the lots» *64is a question of fact; and when that question arises in any case, it is for the jury to say, upon proper proofs, whether or not there was due care and skill in constructing the streets.

A complaint against a city alleged that “ by the neglect and failure of the defend- ***ant to provide any proper or necessary sewers, or in fact any sewers at all, the surface water did not and could not pass off from [a certain lot belonging to the plaintiff], as before the grades of [the streets and alleys adjoining said lots] were raised it had always done; and that said surface water, by reason of being thus retained upon said lots became and was stagnant,” &c. *JECeld,*on demurrer, that this was a sufficient allegation of negligence and unskillfulness in the construction of the street by the city, and brought the case within the decision in *Weeks v. The Giiy of Milwaukee,*10 *Wis., 242.*

APPEAL from tbe Circuit Court for *Milwaukee*County.

This was an action to recover from tbe *City of Milwaukee*tbe amount of an assessment made upon a lot in said city for work done in filling tbe same under contract with tbe city. Tbe circuit court refused to receive any evidence under tbe complaint, and dismissed tbe same upon tbe defendant’s motion, on tbe ground that it did not state a cause of action. The facts alleged in tbe complaint, and relied on as a cause of action, will sufficiently appear from the opinion of this court.

Butler, *Buttrick &*Cottrell, for appellant, contended, 1. That under the decision in *Weeks v. Milwaulcee,*10 Wis., 242, tbe street commissioner’s certificate in this case was illegal and void. 2. That tbe city having assumed to have authority to order tbe filling to be done at the *expense*of the lot, when in fact it bad no such authority, and the contractors having done the work in good faith, tbe city was liable to’the plaintiff (as assignee of tbe contractors) to tbe extent to which be would have been benefitted by tbe contract had tbe authority actually existed, i. e., to the extent of the sum of money mentioned in the certificate, with interest. The case falls within the principle declared by bis court in its reasoning in *Norton v. Bock*County, 18 Wis., 611. 3. As tbe nuisance was one affecting injuriously the general health, the respondent had the power to order it to be abated and to contract for the performance of the work, not at the expense of the property, but *65at the expense of the city. *Miller v: Milwaukee,*14 Wis., 642. In fact, having itself created the nuisance, the city was bound to remove it. Besides the power to abate such a nuisance is granted in express terms by sec. 8, ch. 4 of the respondent’s charter (Laws of 1852, ch. 56.) See also, sec. 5, ch. 4. 4. The complaint, besides showing the contract for doing the work, and that it was actually done, shows that it was necessary for the public good, and avers what the performance of it was actually worth. Upon these allegations the plaintiff is entitled to recover *quantum meruit-.*This is implied in the reasoning of this court in *TJilert v. The Oity of Oshkosh,*14 Wis., 586.

*J. La Due,*for respondent.

*By the Oourt,*

Paine, J.

In the case of *Weeks v. Milwaukee,*10 Wis., 242, this court decided that where the city .had, by negligently and unskillfully constructing a street, created a nuisance upon the plaintiff’s lot, the plaintiff was entitled to an injunction to prevent the city from selling the lot for the assessment imposed on it for abating such nuisance. The plaintiff in this case, the assignee of several contractors, averring that they had done work upon lots in abating nuisances under regular contracts with the proper officers, by which they were to be paid in street commissioners’ certificates, then proceeds to allege that the nuisances so abated had, like that in the Weeks case, been caused solely by the act of the city in constructing streets around the lots, and neglecting to put in proper sewers. He then claims that inasmuch as an assessment upon the lots for such work cannot be enforced, the city is liable to him directly for its value, and this action is brought to recover it. It is suggested by the counsel for the city, that the real fact in this case is that the lots in question were in a marsh, so that after the streets were properly graded across the marsh, any system of sewerage to prevent stagnant water from accumulating in the lots, would have been impracticable. *66If this was so it was a very different state of facts from what was shown in tbe Weeks case. There the lot in question was on the side of a hill, where it was very apparent that the construction of a street would never have created a nuisance upon it by reason of stagnant water, if proper drains had been made. Upon this point there was no dispute.

But whether in constructing streets across a marsh, any system of sewerage would be effectual to prevent stagnant water from afterwards accumulating on the lots, is entirely another question. And it is a question of fact. It would be for the jury to say upon proper proofs, whether there was due care and skill in constructing the streets or not.

But it is sufficient to say that the complaint does not show that the lots here were in a marsh, and as a mere question of pleading we are inclined to think its averments are sufficient to bring the case within the decisión in the Weeks case. It avers that by the neglect and failure of the defendant to provide any proper or necessary sewers, or in fact any sewers at all, the surface water did not and could not pass off from said lot, as before the grades of said streets and alleys were raised it had always done; and that said surface water, by reason of being thus retained upon said lots, became and was stagnant, and created thereby the very nuisance so ordered to be abated, &c. Construing this as a sufficient allegation of negligence and unskillfulness in the construction of the street, it shows a case to which the former decision is applicable. We regard it also as a settled rule, that municipal corporations are responsible for damages occasioned by the negligence or unskillfulness of their agents and officers in constructing public works. There are cases which hold that they are not liable for damages occasioned by the negligence of a contractor or his servants, he exercising a distinct employment. *Painter v. Pittsburg,*Am. Law Register, April, 1864, p. 350. But where the injury is occasioned by not putting a sewer where one is required, the fault is.in the plan, not in the contractor who constructs accord*67ing to it. And as tbe plan is devised by tbe immediate agents of tbe city, and adopted by it, and tbe work directed to be done accordingly, if an injury occurs from tbe want of proper skill in tbe plan, tbe city must be liable if there is any liability at all. So tbat it follows upon tbe allegations of tbe complaint tbat tbe city would bave been liable to tbe owners for the damages caused by tbe negligent and improper construction of tbe streets, and might bave been enjoined from selling the lots to collect an assessment for abating tbe nuisances.

The further question remains, whether upon such facts tbe city is liable directly to tbe contractor for tbe value of tbe work, tbe contracts having been let in tbe ordinary way, with' tbe mutual supposition that tbe lots were chargeable ? By tbe charter it is provided tbat tbe city shall in no event be liable for any work ordered to be done at tbe expense of any lot. Still if tbe city bad itself caused a nuisance on tbe lot of an individual, in such manner as to be liable to him for tbe damages, there might be some ground for saying tbat this provision of tbe charter was inapplicable, and that tbe city would have an implied power of employing contractors at its own cost to abate tbe nuisance, as one mode of making compensation to tbe owner.

But bow far such implied power may exist or extend it is not necessary now to enquire. In tbe Weeks case tbe point above referred to was very briefly considered, being a minor question in tbe case. There was no examination of tbe precise ground upon which the right of tbe owner to restrain tbe sale, should rest. Now, after making such examination, though fully satisfied with tbe decision there made tbat tbe owner has such right, yet we are also satisfied tbat it is a right of an equitable character, rather than one resting upon the technical invalidity of tbe assessment at law. In all such cases, there being a nuisance in fact upon tbe lot, tbe city has jurisdiction to abate it. And tbe proceedings being regular, tbe assessment could not be held void at law. And tbe right of tbe owner to re*68strain tbe Sale grows out of tbe fact that it would be a wrongful use of a legal proceeding, for tbe city to sell bis lot to collect tbe assessment, when it was at the same time liable to refund tbe amount as damages for having caused tbe very nuisance abated. It is in tbe nature of an equitable defense, resting upon tbe injustice of such a use of tbe proceeding at law, and should undoubtedly be disposed of according to established equitable principles. But tbe owner would have the right to make his election among the various remedies. If be should sue at law and recover tbe damages, there would be no further ground for objection to tbe enforcement of the assessment. So if be neglects to resort to his equitable remedy in proper timej be may be held to have waived it, and to be compelled after-wards to resort to bis action for damages.

Thus, suppose A has given B a bond of indemnity against liability on .a certain claim. Judgment is afterwards recovered against B on that claim, and A becomes.the assignee of the judgment If be should attempt to sell tbe land of B on execution, equity would undoubtedly restrain sucb a use of tbe judgment, as between parties bolding such relations to each other. But that would not show tbe judgment to be void at law. On tbe contrary if B should sue on his bond and recover bis damages, A might then enforce tbe judgment. So if B should allow tbe execution sale to take place without any resort to bis equitable remedy, be- might well be said to have waived it, and be obliged afterwards to seek redress in bis action on the bond.

Tbe relations and rights of tbe owner and city, upon an assessment to abate a nuisance caused by tbe wrong or negligence of tbe city, seems to us to be of a similar character. True it was said in the Weeks case that it was “illegal ” to tax tbe plaintiff to abate a nuisance which tbe city had created. But there was no occasion to examine into tbe precise character of that illegality further than to determine whether it was sucb as justified the relief sought in that case, which was an *69equitable action by tbe owner to restrain tbe sale. Tbe general language used must therefore be interpreted by tbe facts to wbicb it was applied. But a more particular examination bas now led us to tbe conclusion that tbe character of tbe illegality, and tbe relations and rights of the parties, are as before stated.

It follows that this complaint shows no cause of action, even assuming that tbe city would be directly liable in case the assessments bad been avoided, because it fails to show that they have been avoided. Tbe owners may waive their equitable rights and allow tbe lots to be sold on the assessment. In that case they would be driven to their actions against the city for tbe damages for creating the nuisances, and the plaintiff here, having then received all that he bargained for, would have no cause for complaint. It is not for him to anticipate the action of tbe owners, and found an action against the city upon tbe fact that his certificates may be avoided, when it is also true that they may not be.

Whether he could make the owners of the lots parties with the city, and compel a determination of the questions between them, it is not necessary to decide, as no such thing has been attempted. The question here is, whether the city is directly liable upon showing such a state of facts as would authorize the owners to restrain a sale on the assessment. And we think it is not.

The judgment must be affirmed, with costs.