The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1910-05-19
CITY ACTED WITHIN RIGHTS
Gaastra Must Appeal to the Supreme
Court if He Desires to Garry the
Fight Against Assessments Further
Decision an Interesting One.

has hled with the Clerk OF Inc circuit
court a decision in the motion Of the
city demurring the complaint of Douwe
Gaastra in which he grants the motion
Of the city and dissolves the injunction
which prevented the sale Of the GAS
ira property for taxes. Judge Belden
has gone deeply into the points in the
case and the decision is one of great
interest as relating to paving assess
ments.
The decision of the court in part fol-
lows:
GIN the former decision sustaining
the dernurrers to the first amended
complaint, the court called attention
to the fact that during all the time
the work in question was going ON
the plaintiff resided in the City of
Kenosha, and that his complaint did
not allege that he was ignorant in
fact of the progress of the work or
of the character thereof, but only that
he did not know Of the defects alleged
until some two years after the compile
tion of the work. Attention was then
called to the salutary rule that one is
presumed to- know that which in con-
temptation of law he ought to know,
and that one is presumed to waive
that which is necessarily implied from
his conduct; that constructive, as we'll
as actual knowledge, Of the facts, sat-
isles the prime essentials of conclusive
waiver. Although the former deci-
sion plainly suggests the view that it
| is almost unbelievable that one residing
in the city, owning some thirty lots,
as the court is advised, AUDITING the
improvement in question, should not
frequently visit and view the improve
ment work going on, involving assess
ments against said property, and as
the fact is, being man of consid-
cradle technical as well as practical
knowledge and experience as a build
ing contractor, should not see and rea-
sonably appreciate the character of the
work going on, that decision did not
60 upon the doctrine of waiver or
estoppel, but only that the plaintiff
had not made out case presently en-
titling him to equitable relief.
CHOW, considering the second amend
ed complaint, we do not have to RELY
upon any presumption that the plain
tiff know the character of the work, or
upon the doctrine that he ought, in
the exercise of reasonable inquiry and
observation, to have known it, for the
complaint now before the court tells
us that the plaintiff knew the work
was not in compliance with the con-
tract, before it's acceptance by the city
and the issue of bond therefor and that
he filed his written protest thereto
with the city council.
emo question is entertained that a
court of equity may afford appropri-
ate relief when timely application is
made therefor, while the work is in
progress; while the court has the pow
er and opportunity to do substantial
justice between the parties; but, as
has been stated before in this matter.
the rule is well settled in this state
that the party seeking relief from
special assessments for local improve
ments cannot wait until the work is
completed or others, not parties, would
be injured by the granting of the re-
lief; he must apply for equitable re-
lief, if at all, seasonably and before
the contractors have been put in such
a position that they cannot be indem-
nifed, and that if he does not so an
ply, he is estopped from obtaining that
relief to the injury of other parties
interested.
cit should be borne in mind that
the complaint and situation before the
court is not one of alleged irregulari-
ties going to the ground work Of the
assessment, but that the work was NOT
done in compliance with the contract
Given if the plaintiff originally had
the right to do the work in front of
his premises, it must be held. under
the circumstances, that he waived that
privilege, that he sanctioned the do
ing of the work by the city and that
he is estopped from now raising that
question.
''The decision upon the demurrers 70
the second amended complaint will,
therefore, rest not only upon the
ground that the complaint fails /. to
state a case now emitting the plain
tiff to equitable relief, but also upon
the ground that his application there
for was not timely, that he is charge
able with laches and is estopped from
obtaining the equitable relief he seeks
T'The demurrers will be sustained
with the usual leave to plaintiff to
amend within twenty days upon pay
ment of ten dollars within said time. 4
1.-THE court is also. Of the opinion