In Cobb the court concluded that the City of Milwaukee had the right to enforce restrictions contained in a deed from the City to the county and that residents of the city could bring a derivative action.Summary of this case from City of Appleton v. Town of Menasha
Argued June 5, 1973. —
Decided June 29, 1973.
APPEALS from a judgment of the circuit court for Milwaukee county: WILLIAM R. MOSER, Circuit Judge. Modified and affirmed.
For the appellants there were briefs by Robert W. Warren, attorney general, and Richard E. Barrett, assistant attorney general, attorneys for Wisconsin Department of Transportation, and Robert P. Russell, corporation counsel, attorney for Milwaukee County and Milwaukee County Expressway and Transportation Commission, and oral argument by Mr. Russell.
For the plaintiffs-respondents there was a brief by Walther Halling, attorneys, and David L. Walther and F. M. Van Hecke of counsel, all of Milwaukee, and oral argument by David L. Walther and Mr. Van Hecke.
For the defendant-respondent there was a brief by James B. Brennan, city attorney, and Gerald V. Kortsch and Francis T. Wasielewski, assistant city attorneys, and oral argument by Mr. Kortsch and Mr. Wasielewski.
This is an action for an injunction brought by Roger Cobb, John Ong, Jr., Mrs. John F. Flynn, Thomas K. Phillipson, Daniel Cupertino, Jr., and Russell Knetzger (hereinafter "plaintiffs") against Milwaukee county, the Milwaukee County Expressway and Transportation Commission, The Wisconsin Department of Transportation and the city of Milwaukee.
This case involves an injunction which has been granted against the above-named defendants restraining them from constructing a portion of the "Lake Expressway" upon park land in the city of Milwaukee.
The parties, pursuant to sec. 269.01, Stats., submitted an "agreed case" to the trial court which determined their respective rights on that basis.
In March of 1963, the Milwaukee County Expressway Commission reviewed and approved a report entitled "Lake Front Expressway," indicating an extension of the Milwaukee County Expressway system from the intersection of Lincoln Avenue north of the East-West Expressway through Jones Island and from the East-West Expressway north to the North Belt Expressway, completing a loop around the central business district and continuing on for some 1500 feet until its termination. The expressway will be a state trunk highway. Some of the land which is necessary for construction of the expressway under the proposed plan and which represents the land subject to the injunction lies to the north of Brady Street and to the north of St. Paul Avenue and to the east of Prospect Avenue within Juneau and McKinley Parks. This land which lies along the shoreline of Lake Michigan is represented as the "shaded-in portion" on the attached diagram.
This is the same map which is labeled Exhibit 23 and made a part of the record. Letters instead of colors have been used to clarify the various parcels of land.
That part of the shaded area designated "A" represents the former Chicago North Western Railway Company right-of-way acquired by Milwaukee county on August 17, 1964. The area designated "D" represents land acquired or to be acquired from private owners for the purpose of the proposed "Juneau Interchange" with the "North Belt Expressway." Areas "B" and "C" represent the specific park land which is involved in this lawsuit and included in the court's injunction.
Area "B" is bounded on the west by the eastern border of the old Chicago North Western Railway right-of-way and on the east by Lake Michigan. That part of Area "B" which is set off by "hash marks" represents the approximate path of the proposed expressway. The first 300 feet of Area "B" was originally granted to the city of Milwaukee in 1893 from the state of Wisconsin by sec. 1 of ch. 197, Laws of 1893. The land conveyed was "submerged land" adjacent to the shore of Lake Michigan and constituted the actual bed of the lake. The grant specifically provided that it was:
". . . to be held and used by said city forever as part of its system of public parks and boulevards . . . provided, that said land . . . shall not be leased or sold by said city of Milwaukee, nor used by it for any other purpose than as a public park and boulevard; . . ."
In 1897, the state legislature — by ch. 200, Laws of 1897, enlarged the strip from 300 feet in width to 600 feet in width. Permission to fill the submerged lands was obtained from the federal government and pursuant to this permission and to the authorization originally contained in the state grants, the submerged lands were filled in by the city of Milwaukee and parks and parkway constructed thereon.
Although the original grant by ch. 197 of Laws of 1893 contained no provisions for a reverter in the event that the land ceased to be used for park purposes, the 1897 legislation which extended the grant by 300 feet created a reversionary interest in the abutting or upland owners.
The lands designated "C" lying to the west of the former railroad right-of-way were acquired for public purposes by the city of Milwaukee at various times. That part of Area "C" designated by "hash marks" also represents part of the path of the proposed expressway.
In April of 1936, the question of conveying the Milwaukee Park and Parkway system to Milwaukee county was submitted to the electors of the city at an election upon a special referendum ballot. The referendum which specified that the lands would be used for "park and parkway purposes only" was approved by a majority of the electors in the election. Acting pursuant to the electors' instruction, the common council of the city of Milwaukee on October 13, 1936, adopted a resolution authorizing the transfer to Milwaukee county of all lands and improvements, administered by the board of park commissioners of the city of Milwaukee for "public park, parkway, amusement or recreation. . ." use exclusively. Pursuant to the resolution, the city of Milwaukee and Milwaukee county on December 3, 1936, entered into a contract transferring control of the parks and parkway to Milwaukee county. In addition to the use restrictions, the contract also provides that as soon as the city removes any obstacle imposed by the state it will execute and deliver deeds conforming with the terms of the referendum.
Following the enactment of enabling legislation by the state, ch. 297, Laws of 1937, the city executed deeds conveying park lands to the county. The deed conveying Juneau Park contained the following language:
"It is expressly understood and agreed . . . that the lands herein conveyed shall always be used for and as a public park . . . and in the event that the said lands shall at any time in the future cease to be used, kept and maintained for public park purposes . . . title to said lands shall at once revert to and revest in the grantors, its successors or assigns." (Emphasis added.)
At the time of the execution of the deed for Juneau Park to the county, a portion of the submerged lands were inadvertently omitted. These lands, nevertheless, remain in the possession of and under the control of Milwaukee county pursuant to the contract entered into between it and the city which likewise provided that the lands subject thereto would always be used for park purposes.
There are, therefore, two categories of land involved in this lawsuit. In the first category, are the lands lying east of the railway right-of-way ("B" Area) which in their submerged state were conveyed to the city of Milwaukee by the state, subject to the restrictions that they be used for park and boulevard purposes. Control over these lands was transferred to the county by virtue of the contract with a reversionary interest established by ch. 200, Laws of 1897, in the abutting or upland owners. Included in the second category are the lands acquired by the city of Milwaukee for public purposes with no restrictions on their use by the city and located west of the railroad right-of-way. These lands were transferred to the county by deed with a reversionary interest in the city itself should they subsequently cease to be used for park purposes.
The report concerning the proposed "Lake Expressway" was submitted to the common council of the city of Milwaukee and on April 30, 1963, the council adopted a resolution approving in principle the general expressway location along the lake. On October 11, 1966, a petition was filed in the Milwaukee city clerk's office by the "Lake Front Preservation Committee" showing the signatures of 10 electors who had signed the petition and containing the signatures of electors of the city of Milwaukee in excess of 15 percent of the votes cast in the city of Milwaukee for the office of governor in the last general election. The petition requested that the council adopt by resolution as policy of the city a commitment to preserve the land involved exclusively for parks and parkways; that the proposed construction of the "Lake Expressway" through these park lands be deemed to be inconsistent with this policy; and that the city refuse to consent to any orders of the Milwaukee County Expressway Commission or take any other action to promote the proposed projects until they have been substantially modified to conform with a policy to preserve the lands exclusively for parks.
Although the council refused to adopt the petition and resolution, it, nevertheless, directed that the resolution be submitted to a vote of the city of Milwaukee electors at the spring election. At the election held April 4, 1967, the following question was submitted:
"Do you favor the above resolution?"
Of the votes cast, 35,172 favored the adoption of a policy consistent with that averted for by the "Lake Front Preservation Committee," while 70,057 were against such a policy.
It is contemplated that title to all of the lands required for construction of the proposed "Lake Freeway" except those lands held in private ownership will be acquired by the state of Wisconsin. All construction contracts for the freeway will be let by the state of Wisconsin. At the request of the defendant, Milwaukee County Expressway and Transportation Commission on or about May 11, 1971, the defendant, Milwaukee county, granted to the defendant, Wisconsin Department of Transportation, the right to enter upon the previously described park lands to construct an expressway thereon.
On July 2, 1971, demand was made upon the defendant city of Milwaukee by delivery of a demand to its mayor and the clerk to act to enforce the reversionary provisions and restrictions of the deed and the contract, and to take legal action to enforce these restrictions. The common council, on July 30, 1971, declined to act upon the demand, choosing instead to place it on file. On September 8, 1971, the plaintiffs commenced this action.
The plaintiffs are taxpayers and citizens of Milwaukee county and they brought this action on their own behalf as taxpayers and also on behalf of the city of Milwaukee who is named as a defendant. The action is brought to enforce the restrictions on the use of the land discussed above and they demand that the defendants be restrained from constructing an expressway on the park lands. The plaintiffs also asked for reasonable costs and attorney's fees of bringing the action against the city of Milwaukee.
The trial court was of the opinion that because of the deed restriction imposed by the city of Milwaukee with a reversionary interest in itself and because of the fact that the city has not sought to enforce it, the plaintiffs were entitled to an injunction against the defendants. The trial court was also of the opinion that because sec. 271.04(8), Stats., providing for attorney's fees relates only to those actions for money damages, the plaintiffs were not entitled to attorney's fees in an injunctive action.
From the judgment granting the injunction, the defendants have appealed. From that portion of the judgment which denied plaintiffs their expenses of litigation, the plaintiffs have cross-appealed.
The parties submitted the following as the issue presently before this court on appeal: Do the restrictions in the documents conveying title and transferring control of park lands from the city to the county preclude the construction of a state highway on such lands?
However, by letter dated May 3, 1973, this court requested the parties to respond to the following four questions:
1. Do the plaintiffs have standing to maintain a derivative action on behalf of a municipal corporation?
2. Is the deed condition a covenant which can be enforced by injunction, or is the city's remedy for violation of the condition a forfeiture of the county's title?
3. Is injunction a proper remedy for protecting the city's interest in the submerged lands which have been leased to the county?
4. Does the proposed freeway use violate the use restrictions in the lease?
Standing to maintain a derivative action. The six plaintiffs are all residents of Milwaukee county with four of the plaintiffs residing in the city of Milwaukee. The action is brought on their own behalf as taxpayers and also: on behalf of the city of Milwaukee who is a named defendant.
The law as it relates to the question of standing to bring an action on behalf of a municipality has been most succinctly stated in 18 McQuillin, Municipal Corporations (3d ed. rev. 1963), pp. 33-36, sec. 52.17 . It is there stated that:
"Actions on behalf of municipality.
"Taxpayers may sometimes sue on behalf of a municipal corporation, to enforce causes of action in its favor, when its officers refuse to do so, and may sometimes take up and carry forward pending litigation which the officers wrongfully abandon, sue to set aside default judgments, or prosecute appeals from judgments against the municipality. Thus, taxpayers may bring suit to recover property belonging to the municipality, or for any money which has been paid out or released without authority of law, or to enforce a cause of action belonging to the municipality against a person having money or property belonging to the municipality or who is otherwise liable to suit, provided conditions required by the particular court or state are complied with.
"The right of taxpayers to sue upon behalf of a city is generally subject to the following conditions and exceptions: (1) the municipality itself must have a clear right and power to sue; (2) a taxpayer cannot sue third persons in behalf of the municipality unless the bringing of such action is a duty devolving upon the municipal authorities, as to which they have no discretion and which they have refused to perform; (3) either a demand must have been made that suit be brought by the public officers of the municipality, or it must be alleged and shown that such demand would be unavailing; and (4) the action does not lie where it would be grossly inequitable to enforce the claim, nor where the basis thereof is a claim of the taxpayer's rather than that of the municipality. However, the remedy of the taxpayer, in such cases, may not be necessarily confined to a direct action against those against whom the municipality has a cause of action.
"The basis of this class of actions is not that there is necessarily a personal and direct pecuniary loss to the taxpayer, but that the public moneys, rights or property are about to be squandered or surrendered, and that such moneys, rights or property belong to the body of taxpayers, and are simply held in trust by the unfaithful public officers. So a resident taxpayer may sue its officers who have squandered or dissipated its funds, or paid them out for an unlawful or unauthorized purpose, to recover such funds for the benefit of the municipality, where its proper law officer neglects and refuses to prosecute such an action."
In support of this proposition, McQuillin cites Linden Land Co., v. Milwaukee Electric Railway Light Co. (1900), 107 Wis. 493, 83 N.W. 851. This court in Linden took great care to point out the very subtle distinction which exists between the type of action brought in the present case — a derivative action — and the more typical taxpayers' action. At pages 503 and 504, the court stated:
"These cases [taxpayers' actions] go on the principle that the money or property so squandered or about to be squandered is the money of the taxpayers, and hence every taxpayer has a substantial interest in it, which he is entitled to have protected. Upon similar principles a taxpayer's right to enforce a cause of action of the corporation is upheld where the corporate officials wrongfully refuse or neglect to perform that duty. Estate of Cole: Mulberger v. Beurhaus, 102 Wis. 1. Here the basis of the right is not that there is necessarily a personal and direct pecuniary loss to the taxpayer, but that the public moneys, rights, or property are about to be squandered or surrendered, and that such moneys, rights, or property belong to the body of taxpayers, and are simply held in trust by the unfaithful public officials. This is well illustrated in the case of Estate of Cole, just cited, where real and personal property was willed in remainder to a city in trust for the establishment of a public library and a home for the aged poor, and a controversy arose between the executors and the city, in the county court, as to whether certain expenditures upon the property should be charged against the life tenant of the property, or against the corpus of the estate. The county court decided against the city, and, the city officials declining to appeal, a taxpayer intervened and took the appeal to the circuit court; and his right to do so was sustained by this court. Here no taxpayer could be said, in strictness, to have suffered a direct or pecuniary injury by the decision of the county court, or the failure to appeal therefrom; but the illegal diminution of the trust property was a distinct invasion of the property of the corporation, in which each individual taxpayer or member of the corporation had a substantial interest, notwithstanding the property could only be used for the purposes of the trust and its entire loss would not necessarily result in increased taxation. So understood, the case is in entire harmony with the general principles laid down in the other cases in this court."
In the instant case, the right and power of the city of Milwaukee to enforce the restrictions contained in both its deed to and contract with Milwaukee county is clear and not subject to realistic challenge. On appeal, the city of Milwaukee does not dispute the fact that they have a duty to prosecute such an action against Milwaukee county from allowing the state to enter the lands involved in this action nor do they contend that they are by some manner clothed with any discretion. Although only four of the six plaintiffs are city of Milwaukee residents, the defendants do not challenge their presence in this lawsuit, nor do they contend that anything but a proper demand was placed upon it to enforce its rights under the deed and contract. Consequently, for purposes of the present action, the parties have proper standing to enforce the rights of the city of Milwaukee as created by the deed and contract. Enforceability of deed and contract restrictions by injunction. It is well established that an injunction may be used to prevent prospective or threatened violations of a restrictive covenant. 20 Am. Jur. 2d, Covenants, Conditions, p. 876, sec. 312; Vorpahl v. Gossman (1964), 24 Wis.2d 232, 128 N.W.2d 430. In Schneider v. Eckhoff (1926), 188 Wis. 550, 26 N.W. 838, certain property owners sought to enforce building line restrictions which were contained in their deeds as well as in that of the defendant. After setting forth the restrictions, the deed provided that ". . . upon the happening of. . . the aforesaid events or contingencies this deed shall become forfeited . . . [and] at once revert to and revest in and become the property of said first parties, their successors or assigns . . . ." Despite the condition for forfeiture contained in the lease, this court approved the entering of the injunction; modifying it only as to its scope and timetable.
Injunction as it relates to leased land. Likewise, injunction is available even though the forfeiture is contained in a lease rather than a deed, if the provision is otherwise enforceable in a court of equity. Cities Service Oil Co. v. Kuckuck (1936), 221 Wis. 633, 267 N.W. 322. At page 639, the court stated:
"The remedy of injunction has been recognized as a proper device to specifically enforce negative promises by enjoining breach of them, and in the case of a contract consisting wholly of negative stipulations, complete specific performance may be granted by injunction. E. L. Husting Co. v. Coca Cola Co. 205 Wis. 356, 237 N.W. 85, 238 N.W. 626."
In the case at bar, it is clear that injunction could be used to enforce the restrictions in the deed and contract and the defendants in no way contend to the contrary. The proposed freeway use violates the use restrictions in the lease. Pursuant to the lease in question, Milwaukee county. agreed that "said premises shall be used exclusively as a public park, parkway, amusement or recreation grounds." The trial court found that these restrictions were in full force and effect and that the use of the land for expressway, freeway, or interstate highway purposes to be inconsistent with park and parkway purposes as those terms were intended in the agreement. On appeal, the defendants contend that in 1936 when the park lands were leased to the county the term "parkway" can now be construed also to mean "expressway" or "freeway." On the other hand, plaintiffs submit that the terms "freeways," "expressways" and "parkways" are not interchangeable.
In the case of School District of Kansas City v. Kansas City (1964), 382 S.W.2d 688, the Supreme Court of Missouri defined the term "parkway" as follows:
"The term may refer to a thoroughfare or roadway which is landscaped or located in a park from which trucks and other heavy vehicles are excluded, or it may be used to designate the landscaped strip of land paralleling or in the center of a thoroughfare. Webster's Third New International Dictionary. It is properly stated in McQuillin, Municipal Corporation, 3d Ed., Vol. 10, sec. 30.05 that: `A parkway, as ordinarily understood, is neither exclusively a street nor exclusively a park but partakes of the character of both"' P. 694
What is contemplated by the defendants is an elevated multilane, multilevel, high-speed conveyor of metropolitan traffic with various interchanges, all passing over what is essentially now Lakeshore Drive and the present Juneau Park Lagoon. By no reasonable construction of the 1936 agreement between the city and the county, could it be said that either the parties to it or the general electorate of Milwaukee who originally authorized it intended "parkways" to also include a modern-day expressway. Such a conclusion is also supported by cases from other jurisdictions.
In the case of Hall v. Fairchild-Gilmore-Wilton Co. (1924), 66 Cal.App. 615, 227 P. 649, the California District Court of Appeal held that a taking of a portion of a public park for a highway was totally inconsistent with the purpose for which the park was originally dedicated. The court stated at page 622:
"We are not unmindful of the rule that if the area of a park is used for buildings or activities of any character incidental to its enjoyment as a park, such use will be upheld by law, but we know of no authority which has held that the taking of any portion of the space of a park and devoting it to strictly highway purposes can be regarded as consistent with the original dedication. On the contrary, the following cases hold that such action is inconsistent with the use of land for park purposes, and is therefore void:"
The cases which the defendants cite as authority for the proposition that the agreement referring to "parkways" embraced the type of construction contemplated here are inapplicable in that they refer either to a factual controversy unrelated to the present situation or simply contain dicta which was made without consideration of whether a party to a contract made three decades ago, could have then envisioned what has now come to be thought of as the most "up-to-date" mode of travel by automobile or truck.
Stock v. Cox (1939), 125 Conn. 405, 6 A.2d 346; State v. Williams (1961), 207 Tenn. 695, 343 S.W.2d 857; State v. Lane (1967), 4 Conn. Cir. 368, 232 A.2d 518; Kleopfert v. City of Minneapolis (1903), 90 Minn. 158, 95 N.W. 908; Chaplin v. Kansas City (1914), 259 Mo. 479, 168 S.W. 763.
In Robbins v. Lincoln Park Commissioners (1928), 332 Ill. 571, 164 N.E. 10, the defendants had there been granted land for "park purposes." The complaint alleged that there was a plan to provide for the building of a "boulevard or driveway" 122 feet from the shoreline which would interfere with the use of the intervening submerged land for park purposes. Likewise, the boulevard was elevated, crossing intersecting streets by viaducts. Holding that an injunction would lie, the court stated at page 581:
"While these do not forbid the building of another boulevard, yet a boulevard which would interfere with the use of the intervening submerged lands as a park when the same shall have been filled in is contrary to the plan of the act to use such lands as a park, and the averment in the bill that the commissioners propose to build across these submerged lands, when so filled, an elevated structure which will interfere with the use of such lands for park purposes as contemplated in the act and will result in injury to the property rights of land owners, is sufficient, if true, to authorize the granting of relief prayed in the bill."
May the state in the future construct an expressway on the land? Upon the facts submitted, the freeway here involved will be a state trunk highway with all construction contracts for it being let by the state. It is contemplated that title to all lands required for construction will be eventually acquired by the state of Wisconsin.
Based upon the deed restriction contained in the conveyance from the city to the county and upon the fact that the city of Milwaukee has never sought to enforce its reverter rights, the trial court held that plaintiffs were entitled to an injunction and entered judgment accordingly. The judgment stated that:
"1. That the Defendants, Milwaukee county, Milwaukee County Expressway and Transportation Commission, and Wisconsin Department of Transportation, their agents, assigns and employees, be and they hereby are, enjoined and restrained from entering or causing to have entered pursuant to any right of entry or by any other means, for purposes of or purposes related to the construction, extension, or establishment of any freeway, expressway, or component of the Interstate Highway System . . . ."
The defendants now seek from this court a determination of whether the restrictions contained in the deed and contract which conveyed title and control of park land from the city to the county preclude the construction of a state highway on this land. The defendants admit that there presently remain the following outstanding interests to be acquired before they may proceed with the construction of the expressway: the reversionary interest in the city of the lands lying to the west of the railroad right-of-way ("E" Area), which was created by the deed of conveyance from the city to the county; the reversionary interest in the abutting or upland owners of the land lying east of the railroad right-of-way ("B" Area) created by ch. 200, Laws of 1897; and whatever leasehold interest which the city might have in its contract with the county to use the land there involved for "park and parkway purposes only." Likewise, there may be outstanding federal interests which might have to be reconciled.
Although the state admits that these interests must be acquired before they can proceed, they contend that the trial court's judgment is written in a way that would preclude the state from proceeding even after these outstanding interests have been acquired. The judgment is written in very broad language and without recognition of the status of the state to proceed at a future time when the interests referred to have been acquired. The state's power pursuant to sec. 84.09, Stats., lies at the very heart of this question.
Sec. 84.09 Stats., is a very broad grant of power to the state to "acquire by gift, devise, purchase or condemnation any lands for establishing . . . [and] constructing . . . highways . . . ." Similarly, sub. (1) expressly authorizes for the purpose of this section, acquisition for a public use of property which is already being devoted to a public use. It is clear that sec. 84.09 vests authority in the state to acquire the outstanding interests for the purpose of constructing an expressway on the land involved.
In 1 Nichols, Eminent Domain (3d ed. 1964), pp. 203-211, sec. 2.2, the general rule is stated:
" Public property. In the determination of the question whether or not property already devoted to a public use can be subjected to the process of eminent domain the primary factor to be considered is the character of the condemnor.
"If the sovereign, such as the state or the United States on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the ` res' as public property, generally, has no inhibiting influence upon the exercise of the power."
As of the time of trial and even as of the date when the appeal in this matter was heard, the state had not as yet begun to acquire these outstanding interests, either by gift, purchase or condemnation; though it is admitted and a part of the agreed case that, at the request of the defendant, Milwaukee County Expressway and Transportation Commission, on or about May 11, 1971, the defendant, Milwaukee county, granted to the defendant, Wisconsin Department of Transportation, the right to enter upon the park lands to construct an expressway thereon.
In the case at bar, the state admits that it has been granted a right of entry for the purposes of constructing an expressway in direct derogation of numerous outstanding interests which have yet to be acquired. In order to protect the interests of the city and others and to prevent irreparable damage, injunctive relief was necessary.
The question to be determined is whether the trial' court's judgment granting a permanent injunction was too broad in scope. We think it was. An appropriate remedy under the particular facts of this case would have been an injunction enjoining and restraining defendants from constructing the expressway until such time as the outstanding property interests were acquired.
The injunction which accompanied the judgment in this case enjoins and restrains the defendants from constructing the expressway even in the event they have acquired the outstanding property interests by gift, sale or condemnation proceedings.
We conclude that paragraph one of the judgment should be modified to read as follows:
1. That the defendants, Milwaukee county, Milwaukee County Expressway and Transportation Commission, and Wisconsin Department of Transportation, their agents, assigns and employees, be and they hereby are, enjoined and restrained from the construction, extension, or establishment of any freeway, expressway, or component of the Interstate Highway System on the property described with particularity in the agreed case herein as described and shown in the Exhibit 23 therein until such time as said defendants acquire the following outstanding interests:
1. The reversionary interest in the city of the lands lying to the west of the railroad right-of-way.
2. The reversionary interest in the abutting or upland owners of the land lying east of the railroad right-of-way.
3. Whatever leasehold interest which the city might have in its contract with the county to use the land there involved for "park and parkway purposes only." Recovery of attorney's fees. Plaintiffs have cross-appealed from that part of the judgment which denies them their expenses of litigation. Both the trial court and defendant city of Milwaukee have relied upon sec. 271.04(8), Stats., which provides:
"(8) . . . In all actions brought for the benefit of any county, town, village, city or other municipal corporation of this state by a citizen taxpayer, the plaintiff shall be entitled to recover for his own use, in case he shall prevail, the taxable costs of such action and such part of the recovery as the court shall deem reasonable, as attorney's fees, not to exceed 20 percent of such recovery, and not to exceed $500."
The above section sets out the conditions which must be found to exist before attorney's fees may be considered by the court. These conditions may be stated as follows:
(1) The action must be brought for the benefit of the municipality;
(2) The plaintiff must prevail in the action;
(3) There must be a recovery in the nature of a sum certain or liquidable asset out of which attorney's fees, as the court shall deem reasonable, may be awarded to the plaintiffs, but not exceed 20 percent of the recovery nor $500.
This being a statute in derogation of the common law, the trial court gave it a strict construction as required by the case of Martineau v. State Conservation Comm. (1972), 54 Wis.2d 76, 194 N.W.2d 664. The court held that the third condition was not met. In order for attorney's fees to be awarded on a percentage basis, recovery must be in the form of a sum certain or other asset which can be liquidated. In the case, there was no such recovery. No common fund was created or preserved by plaintiffs' action.
It is clear that sec. 271.04(8), stats., does not provide for the recovery of attorney's fees and despite the fact that plaintiffs have relied on various theories of recovery, no express statutory authorization can be found.
We conclude that the judgment as modified must be affirmed.
By the court. — Judgment modified and, as modified, affirmed.