#### Crossett vs. The City of Janesville and another.

*Oharter of Janesville*— Grading *of streets*— Petition *required*— Presumption *as to grade referred to in the petition.*

The charter of a city declares that its common council shall have full control of the streets, and power to establish the grades thereof, but provides that no street shall be graded without a recommendation in writing, signed by a majority of the resident owners of properly situate thereon. *Meld,*

1. That the city was liable to a lot owner for injury to his lot from the *421grading of a street by order of the council without such a recommendation.

2. That where the grade of a street had been established by vote of the council, a recommendation subsequently presented by a majority of the resident owners of property on such street, that the same be graded, must be presumed to refer to the grade so established. And this will be so even if the proceedings in establishing such grade were not in all respects regular.

3. That after such recommendation, the council cannot grade the street to a grade differing from the one so established, without a *new*recommendation to that effect.

APPEAL from tbe Circuit Court for *Bock*County.

Tbe action was brought by *Mary A. Orossett*against tbe *City of Janesville*and one Barron, to recover for injuries done to plaintiff’s lots, bounded by EranMin street in said city, in consequence of tbe removal of earth from said street adjoining said lots, to a depth of from four to six *feet;*which removal is averred to have been made by the defendants unlawfully and negligently. The answer was, in substance, that on or about the 6th of August, 1866, a recommendation in writing was presented to the common council of said city, signed by a majority of the resident owners of the real property bounded by said EranMin street, asMng said common council to cause said street, between two certain points (specified in the complaint), to be graded; that the lots here in question were situated between said points; that afterwards, about the 17th of September, 1866, said common council duly caused to be filed in the office of the clerk of said city, a plain and accurate specification of the proposed work, the grade of said EranMin street having been first duly established by said common council; that after-wards, on said 17th of September, 1866, said common council ordered said street, between the aforesaid points, to be graded, and fixed the time within which it should be done, etc.; and that the work was afterwards let, in the manner required by the charter, to the defendant Barron, by whom it was duly performed, etc.

*422It appears from tbe evidence given at the trial, tbat a “ profile and grade ” of a portion of Franklin street, including tbe part iu front of plaintiff’s lots, bad been inadé and filed in tbe city clerk’s office in 1854. A copy of it was also found in tbe books of tbe city engineer, but without evidence of its having ever been *filed*in tbat office. There was also found on file in tbe offices of tbe clerk and engineer, a “profile and grade” of tbe same portion of said street, made in 1857; but there was no evidence of its adoption by tbe city. There was evidence also tbat work bad been done in grading said street in front of plaintiff’s lots and elsewhere, prior to 1866; but whether tbe actual grade at tbat time corresponded with tbat delineated upon either of tbe papers above named, does not appear. Tbe petition of property holders on Franklin street, referred to in tbe complaint, was put in evidence. Tbe prayer of tbe petition is, tbat tbe council “ cause to be graded” tbe part of Franklin street therein described.

Tbe defendants offered to prove tbat Mr. Orossett, tbe bus-band of tbe plaintiff, bad acted as plaintiff’s agent in respect to tbe lots in question, ever since she owned them; tbat be procured and circulated tbe recommendation above mentioned, and signed it in her behalf; and tbat be was told what tbe excavation would be in front of her property, and said be did not care, be wanted them to go on with tbe grading. Tbe court ruled out tbe evidence, bolding it inadmissible unless accompanied by proof tbat Mr. Orossett “ was specially authorized by tbe plaintiff to make those statements.” Tbe other evidence need not be stated.

The court instructed tbe jury tbat “for want of tbe necessary petition of a majority of' tbe resident property owners on Franklin street, tbe city council bad no power to cause tbat street to be worked to tbe grade established and fixed by tbe council in 1866 tbat plaintiff was therefore entitled to recover in this action for all tbe direct and proximate damages to her premises caused by tbe grading in question; tbat as tbe work was done *423by *Barron*under tbe direction of tbe city council, etc., tbe recovery must be against both defendants; and that tbe measure of plaintiff’s damages was tbe actual depreciation in tbe value of ber lots by reason of tbe grading having been done at tbe time and in tbe manner it was done.

Tbe court refused instructions, asked by tbe defendants, to tbe effect, that tbe common council of tbe defendant city has full control and power over tbe street in question, and tbe right to grade and improve tbe same; and, if it did so with ordinary care and skill, was not liable for damage in consequence of such grading and improvement.

Yerdict for plaintiff. for $1,300 damages; new trial denied; and defendants appealed from a judgment on tbe verdict.

Tbe following are tbe provisions of tbe charter of Janesville (cb. 474, P. & L. Laws of 1866) which are relied upon by tbe respective parties in this case:

Section 1 of chapter 6 gives tbe common council “full control and power over and management of all streets, alleys, lanes and public grounds in said city,” with power “to establish tbe grades of all such streets, lanes,” etc.

Section 18 of tbe same chapter empowers tbe common council “ to cause any street, highway, lane or alley,” or any part thereof, “to be graded, worked, graveled, macadamized, paved or repaved” etc., etc., “as it shall deem necessary; provided, that no street, highway, lane or alley, or any part thereof, shall be graded, macadamized, paved or repaved, planked or replanked, without a recommendation in writing, signed by a majority of tbe resident owners of property which is bounded by such street, highway, lane or alley on which said work is proposed to be done or improvement made,” except as thereinafter provided.

Section 24 of tbe same chapter provides that whenever it shall appear to tbe common council by petition or affidavit duly verified, that any street, etc., or any part thereof, in said city, should be graded, macadamized, paved, etc., and that a majority of tbe *424resident owners of property bounded by sucb street, etc., refuse to sign tbe recommendation mentioned in section 18 of said chapter, tbe common council shall have power to appoint a committee, consisting of one alderman from each ward, to examine sucb street, etc., and report its condition, and whether in their opinion it should be graded, macadamized, etc.; and upon receiving the report of such committee the council is empowered to order such street, etc., to be graded, macadamized, etc., in the same manner and with the same effect, as though a recommendation signed as above described, had been presented to the council.

*J. W. Sale,*for appellants,

argued that in fixing the grade of a street, the property owners, under the charter of the defendant city, have no voice, but the power is lodged absolutely in the council; that if the grade fixed by it fails to meet the approval of the property owners, they may refuse to ask the council to grade the street, but the council may nevertheless cause the street to be graded by a proceeding under sec. 24, above recited. It seems clear, therefore, that when a recommendation is presented to the council, asking generally that a certain street be graded, it must be construed as asking the council to grade the street to such grade as, in the exercise of its best judgment, it may adopt; and especially must this be so where at the time the recommendation is presented no grade of the street to which it refers has ever been adopted, or where, although a grade has been previously adopted, the street has already been worked to such grade. Counsel contended that the evidence showed the latter state of facts to exist here. 2. The power given the council to fix the grades of the streets is a continuing power, under which grades may be changed and re-established from time to time at the -discretion of the council. Charter, ch. 6, sec. 1; *Goodall v. Milwaukee,*5 Wis., 32, 52 ; *Goszlerv. Georgetoum,*6 Wheat, 593. 3. The city cannot be a trespasser upon its own streets while engaged in working them so as to render them safe and convenient for public use. *425Charter, cb. 6, secs. 1 and 18; *Kimball v.*Kenosha, 4 Wis., 321. 4. A municipal corporation mating an improvement solely for tbe benefit of the public, under ample authority, is not liable for consequential damages to property in the vicinity. *Alexander v. Milwaukee,*16 "Wis., 247; *Badcliff’s Fx'rs v. Brooklyn,*4 Corns., 195 ; *Wilson v. New York,*1 Denio, 595; *O' Connor v. Pittsburg,*18 Pa. St., 187. 5. Mr. Crossett having always acted as plaintiff’s agent in the management of the property alleged to have been injured, plaintiff was bound by his acts and declarations. *Biley v. Buy dam,*4 Barb., 222 ; *Hopkins v. Molli-nieux,*4 Wend., 465 ; *Fleming v. Smith,*44 Barb., 554.

*I C. Shan,*for respondent:

1. Towns, like other corporations, can exercise no powers except such as are expressly or impliedly delegated to them by the legislature. *Booth v. Woodbury,*32 Conn., 118 ; *Webster v. Harwinton,*id., 131; *Allen v. Fdgcomb,*53 Me., 446. All powers not expressly granted by the charter of - a municipal corporation, or necessary to carry out those powers, are denied. *Leavenworth v. Norton,*1 Kansas, 432; *Parker v. Baker,*1 Clarke Ch., 223; *Kyle v. Malin,*8 Ind., 34; *Hooper v. Fmery,*14 Me., 375. Where a special power is conferred, and the manner in which it is to be exercised prescribed by statute, the validity of the acts done as under such grant of power depends on their strict conformity to the statute. *Kneeland v. Milwaukee,*18 Wis., 411; *Myrkk v. La Crosse,*17 id., 442. See also *Zottmanv. San Francisco,*20 Cal., 96. Towns are liable to lot owners for damages caused by the negligent or improper construction of streets *(.Smith*v. *Milwaukee,*18 Wis., 67), and of course are liable for damages resulting from excavations which they have no authority to make. 2. The proceedings for grading Franklin street were illegal. (1.) The grade had been established in 1854. The charter (ch. 6, sec. 1) gives the power to establish the grades of streets, but not that to alter grades once established. The latter power cannot be inferred from the former. The withholding of it was necessary for the protection of lot owners. *426*Oakley v.*Williamsburg, 6 Paige, *262. (2.)*If tbe council bad tbe power to alter tbe grade, still tbe city would be liable for damages caused by sucb alteration. *Goodall v.*Milwaukee, 5 Wis., 32; ■ *Crawford v. Village of*Delaware, 7 Obio St., 459. (3.) Tbe recommendation must be understood as for tbe grading of tbe street upon tbe grade then already established ; and it was a fraud on tbe property owners to change tbe grade after tbe recommendation was presented. *Myrick v. La Crosee,*17 Wis., 442.

Tbe following opinion was filed at tbe January term, 1871:

Cole, J.

Assuming that tbe common council of tbe city of Janesville bad power under tbe charter to change tbe grade already established, we still think tbe city was liable to tbe plaintiff for all damages sustained by. reason of grading tbe street according to tbe altered grade. For, while tbe charter enacts that tbe common council shall have full control over tbe streets of tbe city, and establish tbe grades thereof (section 1, chap. 6 of tbe charter, P. & L. Laws of 1866, chap. 474), yet it clearly provides that *no street shall be graded without a recommendation in*writing, *signed by a majority of the resident owners of property situated on the street which it is proposed to grade*(section 18, same chapter). Now it is not claimed, or pretended, that.a majority of tbe resident owners of property on Franklin street recommended in writing that tbe grade established in *1866*be made; and for tbe want of this necessary petition tbe common council bad no authority to execute tbe work. This recommendation was absolutely essential and necessary to authorize tbe common council to make tbe grade according to tbe changed grade; and tbe common council bad no power to proceed without it, except under tbe 24th section; and there is not a particle of evidence which tends to show that they attempted to proceed under tbe latter section. There is not even a pretense .that it was made to appear to the common council, by affidavit or petition duly verified, that it was .necessary Franklin street *427should be graded, and that a majority of the resident owners of property bounded on that street refused to sign the recommendation therefor, so as to authorize the appointment of a ^committee to make an examination of the street, and to proceed with the work in the absence of the recommendation. But the common council seem to have proceeded upon the assumption that they had full authority to act under section eighteen above referred to, and that it was not necessary, after the grade was changed, that a recommendation should be presented asking that the street be graded according to the grade adopted. That this was an erroneous view of the requirements of the charter, seems to us very plain.

And, for the purposes of this case, it may be concedéd that under the charter the common council has absolute power to establish the grade of a street, or change the grade once established, and that the property owners have' no voice in the matter. But the charter very clearly imposes this restriction upon the power of the common council, that no street shall be graded without a recommendation in writing signed by a majority of the resident owners of property on the street. True; there is the further power granted in section 24; but this grant only the more clearly shows that when the common council assume to execute the work under section 18, they have no authority to proceed in the absence of the recommendation. The charter manifestly contemplates that the grade should first be established by the common council, so that the owners of property may have some means of judging how it will affect their lots when made. And ■if a majority of the resident owners of property which is situated upon the street, recommend that the street be graded as proposed, the common council can then proceed in accordance with the next section. All these various provisions of the charter in regard to the grading of streets are obviously intended to protect the owners of property whose lots are charged with the expense of the work. There is surely no ground for making a .distinction between an altered grade and one first established; *428and if a recommendation is essential to authorize tbe execution of tbe work in tbe one case, it is in tbe other. And it seems to us that there cannot exist a reasonable doubt as to tbe intention of tbe legislature upon this subject; and it manifestly was, to restrict and limit tbe powers of tbe common council to grade tbe streets of tbe city under tbe 18th section to cases where, after tbe grade is altered, or established in tbe first instance, tbe prescribed recommendation is presented for grading tbe street. This alone authorizes tbe common council to proceed and cause tbe work to be done. Tbe validity of tbe acts of tbe city officers depends in tbe present case upon their having proceeded in conformity to tbe charter; and if they have caused Franklin street to be graded in disregard of tbe conditions upon which they were to exercise tbe power of grading streets, tbe city is liable for damages resulting from tbe illegal proceedings. And as tbe common council, therefore, bad no authority to execute tbe altered grade without tbe proper recommendation asking that tbe street be graded according to tbe alteration, their action in tbe premises was illegal.

It appears from tbe evidence, that on tbe 6th of August, 1866, a recommendation was presented to tbe common council, which was signed by a majority of resident owners of property situated on Franklin street, asking' that that part of Franklin street between Bluff street and tbe south line of section 25 be graded. But this was prior to tbe adoption of tbe altered grade by tbe common council, and of course cannot be considered a recommendation for tbe execution of tbe altered grade. If that recommendation has any significance whatever, it must be presumed to refer to tbe execution of some previous grade, either that of 1854 or that of 1857. We do not understand from tbe testimony that that part of Franklin street between Bluff street and tbe south line of section 25 bad ever been graded according to either of these grades; indeed, tbe inference is irresistible, that it bad not been so graded, because it appears from tbe evidence that Franklin street, north of tbe plaintiff’s property, *429was impassable for teams on account of a “ big'gully,” and was not even safe for footmen in tbe nigbt time. So it is but fair to assume tbat tbis portion of Franklin street, designated in tbe recommendation, bad never been entirely graded, according to either tbe grade.of 1854 or tbat of 1857; and we must presume tbe recommendation related to some existing established grade. At all events, it is very obvious tbat it could not possibly refer to tbe changed grade, since tbat was not adopted until some weeks thereafter. Nor would tbis presumption be overcome even if it appeared tbat tbe provisions of tbe charter bad not in all respects been complied with in establishing those grades, for tbe property owners might not have been aware of tbe defect in tbe proceedings, if any existed; and tbe only presumption which can arise upon tbe recommendation is, tbat tbe signers asked tbat tbe street be graded according to the grade which they supposed bad been established. We therefore fully agree with tbe circuit court in tbe proposition, tbat, for want of tbe necessary petition of a majority of tbe resident property owners on Franklin street, tbe city council bad no power to cause tbat street to be worked to tbe grade established and fixed by tbe council in 1866, and tbat tbe plaintiff was entitled to recover for all tbe direct and proximate damages to her property caused by tbe grade in question, Tbis point is decisive of tbe case.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.

LyoN, J., took no part in tbis decision, tbe cause having been tried before him at tbe circuit.

A motion for a rehearing was denied at tbe June term, 1871.