The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1910-02-24
GAASTRA NO CAUSE FOR ACTION
Court in Long Decision Declares That
His Permitting the WORK to be Com
pleted Without Protests Shut Off
Cause of Action.

The validity of the assessments
| levied for the paving Of Crate street
and especially those against the prop
erty of ID. Gaastra has again been up
held by Judge Belden in the circuit
court and in a decision Thursday the
court sustains the demurrer OF the
city in which it was alleged that the
complaint of Gaastra does not state
sufficient cause of action. The
opinion of the court is a long one 60
ing fully into the details Of the com
plant of Gaastra, but the meat of 1T
holds that there is no evidence that
the action of the city was in any way
irregular and that the very fact that
Gaastra was a resident of the city and
saw the improvements being made
without making any protest against
the manner in which the work was
done was sufficient to prevent his com
ing in and stopping the issue of bonds
in payment for the work. The judge
declares that to permit such an action
to hold in court would render all pub
lie improvements at the hands of gov
erning bodies Of cities impractical if
not impossible. In closing his opinion
Judge Belden says:
| "It is held in some jurisdictions that
the doctrine Of laches or estopped does
not operate in cases of fraud. No
actual fraud is charged in this case
as against the city or it's officers, but
only legal or constructive fraud be-
cause of the acceptance of the work
without proper inspection.
cit would seem that the plaintiff
ought to advise the court how he be-
came informed of the facts which he
now charges constitute fraud and that
he ought to show to the court that he
did not know Of those facts and could
not reasonably be expected to become
informed Of them earlier than he says
he did and before the completion of
the work, so as to enable the court
to Judge whether he has been diligent
or Indifferent.
"Conceding that the complaint
makes a showing emitting the plain
tiff to some relief the question is what
sort of relief shall he have 1t must
be taken as settled that the proceed
ings leading up to the making of the
contract and the laying Of the as
sessments and issue of bonds were reg
ular and sufficient to make the >juris
diction Of the city in the premises be-
yond question. The only situation,
then, emitting the plaintiff to consid-
GRAFTON, would be that the work COM
planned of has not been done in sub
stantial compliance with the contract
&, The plaintiff does not complain that
his property would not be benefited
to the extent of the assessment if the
work had been done according to the
contract, nor that, if the work had
been properly done, his assessment
therefor would be unjust or inequft-
able; nor does the plaintiff seek to
escape bearing his proper proportion
of the reasonable cost of the improve
ment done according to the contract
This being SO all that is required to
satisfy the plaintiff is that the work
shall be done according to contract
4 To entitle one to equitable relief he
must clearly satisfy the court of his
right thereto, that he is without ade-
quate remedy at law and that he is
subjected to irrevocable injury. These
requirements do not appear in this
case. 1t would not be proper exer-
else of equitable powers to avoid the
assessments and bonds upon this com
plant. Where work done by con
tractor is not according to the ordi-
nance, but has been accepted by the
city and paid for, the remedy Of the
property owner is not by injunction
to restrain the collection of the as
sessment, but by mandamus to com
pei the city to complete the work in
accordance with the terms Of the ordi-
nance (Hamilton Special Assessment,
Section 764; Dixon vs.. Detroit, 80 n
w. 628.)
eeThe conclusion of the court is that
the complaint does not entitle the
plaintiff to the equitable relief prayed
for and that the demurrer thereto
must be sustained
1.-THE complaint under consideration,
is held to be an amended complaint
and not the beginning to new action