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Rude v. St. Marie, 121 Wis. 634.

the words "or town board" were not stricken out by ch. 121, Laws of 1901, until after the proceedings in question. On the other hand, it is claimed on the part of the defendant that such application was not made to the "town board," and that the "town board" did not lay out the ditch in question. The statute required the petitioners to "make application in writing to the supervisors in the town," etc. Sec. 1359, Stats. 1898. The subsequent sections applicable in ch. 54 repeatedly prescribe the duties of supervisors in such matters, but nowhere refer to them as the "town board." Secs. 13601371a, Stats. 1898. The application in this case was "to the supervisors of the town." This court has, in effect, held that supervisors acting under ch. 54 of the statutes are in the exercise of a police power conferred upon them as public or governmental officers by statute, and not as a town board. Williams v. Yorkville, 59 Wis. 119, 17 N. W. 546; State ex rel. Gordon v. McNay, 90 Wis. 104, 62 N. W. 917. Hence we must conclude that the application was to them as governmental officers, and not as a town board, so that it does not fall within the letter of sec. 3187a, Stats. 1898, to the words of which we have no right to add by construction. The proceeding, therefore, is not void by reason of failure to file notice of lis pendens in accordance with that section.

Nevertheless, counsel for the appellant contends that such an application, whether it results in taking land under the power of eminent domain or merely calls into operation the police power, is a proceeding affecting the lands relative to which the application operates, and that one object of the section is to protect subsequent purchasers or incumbrancers. It declares that "no final order, judgment or decree or final resolution or order taking or affecting such land, based upon any application therefor, shall have any effect, or be notice to any subsequent purchaser or incumbrancer, unless" such notice of lis pendens is filed. Id. Counsel seem to rely upon Svennes v. West Salem, 114 Wis. 650, 91 N. W. 121, where

Rude v. St. Marie, 121 Wis. 634.

the action was to restrain the village from constructing a drain upon the land of the plaintiff, taken by proceedings for the condemnation of the same, as prescribed by secs. 895904, 927. See Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192, 194. There are other sections of the statutes authorizing the superintendent of highways to enter upon any lands adjoining to or near the highway in his district, and construct such drains or ditches as may be necessary for the improvement or preservation of such highways. Sec. 1236, and other sections of ch. 52, Stats. 1898. Such construction of drains has been regarded by this court as the taking of private property for public use, within the meaning of the constitution, and hence requiring compensation therefor to be made. Sec. 13, art. I, Const.; Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403, and cases there cited; Smith v. Gould, 59 Wis. 631, 18 N. W. 457; S. C. 61 Wis. 31, 20 N. W. 369 The section of the statute in question manifestly requires the filing of notice of lis pendens whenever lands are taken for public use by proceedings such as it defines, namely, upon application to such boards as it specifies; but for the reasons stated above it has no application here, for this proceeding was not had before any such tribunal.

use.

Another question discussed more particularly on the oral argument was the constitutionality of this proceeding, called forth by the contention of the respondent's counsel that this was not a taking under the power of eminent domain, because the construction of the drain was for a merely private Such contention is undoubtedly based upon certain statements contained in the opinion of Mr. Justice ORTON in the case of Donnelly v. Decker, 58 Wis. 461, 468, 17 N. W. 389, 391. It is there, among other things, said, in effect, "that such ditching and draining are for no public use whatever in the legal meaning of the term;" that "the primary object is solely to restore such lands to a proper condition for tillage and agriculture by the several owners, and for

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Rude v. St. Marie, 121 Wis. 634.

their use alone.

This is the only object which concerns their use, and that use is strictly private;" that "there is a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the constitution, called the police power of the state." Such statements are manifestly repugnant to other portions of the same opinion. For instance, the opinion quotes a portion of the statute wherein it is, in effect, declared that the supervisors are only authorized to lay out and establish such difch or drain "if in their judgment such ditch, drain, or enlargement is demanded by or will conduce to the public health or welfare.” Sec. 1359, Stats. 1898. So it is said in the opinion: "This legislation may readily be referred to this power by providing for the public health." The authorities cited in the opinion do not justify the statement that such use is private and for the sole benefit of the landowners. In speaking of that case it was said by COLE, C. J., that "the majority of the court rested the authority to enact such a law upon the police power to protect the public health and welfare." Bryant v. Robbins, 70 Wis. 269, 35 N. W. 545. In a later case he said:

"The declared purpose of the law in question is to promote the public health and welfare by executing a system of drainage. That is the main purpose and object of the law." State ex rel. Baltzell v. Stewart, 74 Wis. 620, 626, 43 N. W. 947. Under the same section of the statute, and in an opinion by LYON, C. J., it was held by this court that:

"The town supervisors, before proceeding to lay out and establish a ditch, must determine that in their judgment it is demanded by, or will conduce to, the public health or welfare. Such a determination is essential to their jurisdiction, and unless it appears on the face of their proceedings their order laying out and establishing the ditch is void." State ex rel. Witte v. Curtis, 86 Wis. 140, 56 N. W. 475.

In the case at bar the supervisors met pursuant to notice ten days before the time fixed for laying out such drain, and

Rude v. St. Marie, 121 Wis. 634.

did then and there proceed to examine the location where it was proposed to construct such ditch and the enlargement thereof, and did hear any and all reasons offered for or against the laying out and construction thereof, and declared that in their judgment such enlargement of the ditch was demanded by, or would conduce to, the public health or welfare, and thereupon did decide to lay out and establish the same. The marsh to be so drained was upon the lands of the plaintiff and the three other parties referred to, and the drain was constructed on that marsh.

What has been said about the case of Donnelly v. Decker, supra, is not by way of criticising the decision in that case, but merely to correct certain misleading remarks of the learned justice who wrote the opinion in that case. In that case he quotes from Cooley this language:

"Similar considerations apply in the case of drainage laws, which are enacted in order to relieve swamps, marshes, and other low lands of the excessive waters which detract from their value for occupation and cultivation, and perhaps render them worthless for use, and are likely at the same time to diffuse through the neighborhood a dangerous nuisance. If these may be drained at the expense of the owner by special tax, there can be no doubt of the right of the state to make it his duty to drain them as a matter of police regulation, the state coming forward to perform the duty at his expense in case of its not being suitably or expeditiously performed." Donnelly v. Decker, 58 Wis. 470, 17 N. W. 389. See, also, 25 Am. & Eng. Ency. of Law (2d ed.) 1181, 1182.

Thus, in a late case in New York, where the defendant was required to provide "suitable appliances to receive and distribute a supply of water for domestic use" on the floors specified in two buildings belonging to the defendant, it was said by Judge PECKHAM, speaking for the court, that:

"Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional though no provision is made for compensation for such disturbances. They do not appropriate private prop

Rude v. St. Marie, 121 Wis. 634.

erty for public use, but simply regulate its use and enjoyment by the owner. If he suffer injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure." Health Department v. Rector, 145 N. Y. 32, 43, 39 N. E. 833, 836, citing, among other authorities, 1 Dillon, Mun. Corp. (4th ed.) § 141.

The police power in such cases is usually exerted merely to regulate the use and enjoyment of property by the owner. 22 Am. & Eng. Ency. of Law (2d ed.) 916; Lewis, Eminent Domain (2d ed.) § 187. It is said by the author in this last volume, and in the same section, that:

"A tract of land which requires drainage may be so situated that it can only be drained by a ditch through another tract which does not require it and would not be benefited by it. In such case certainly the drain could only be made under the power of eminent domain."

That is the same in principle as the cases above cited where drains or ditches are constructed upon adjoining lands to improve or preserve public highways.

In the case at bar the basis of the proceedings was the right to promote the public health and welfare. A public nuisance may always be abated. Its abatement may be beneficial to the owner of the land upon which it is situated; and such benefits may be assessed against the owner. The mere fact that such benefits may be assessed against the owner does not take the case out from under the police power and place it under the power of eminent domain. In this case it is quite unnecessary to decide whether the actual physical invasion of the plaintiff's land was a mere regulation of the use thereof to abate a public nuisance thereon, or whether it involved in addition a taking of some portion of the plaintiff's land as a means to abate a nuisance on the lands of others. Even if the latter be true, the proceeding prescribed by the