Dieterich, J., took no part.
The opinion of the court was delivered by: Gordon
This is an action for a declaratory judgment commenced on March 15, 1956, by the village of Brown Deer against the city of Milwaukee and the town of Granville. Prior to the events which precipitated this lawsuit, Granville was an unincorporated area of 22 1/2 square miles located in Milwaukee county. In 1956, Brown Deer adopted five ordinances purporting to annex five different territories in Granville. Milwaukee, in 1956, adopted an ordinance purporting to annex territory in Granville, a part of which was included in one of the Brown Deer annexations. During that same year Milwaukee and Granville adopted consolidation ordinances which were subsequently approved at a referendum. Thereafter, Milwaukee asserted jurisdiction over all of Granville. Originally, Brown Deer sought a declaratory judgment which requested a determination that its five annexation ordinances were valid, that Milwaukee's annexation ordinance was invalid, and that Milwaukee's and Granville's consolidation ordinances were invalid.
In the first of the prior appeals this court determined that Brown Deer's annexations of territories in Granville took precedence over Milwaukee's consolidation with Granville. Thus, if Brown Deer's annexation ordinances were valid, then the territories involved would become part of Brown Deer. Brown Deer, Village of, v. City of Milwaukee (1956), 274 Wis. 50, 79 N.W.2d 340.
Pursuant to the mandate of this court in the second appeal, the trial court entered summary judgment that the consolidation ordinances of Milwaukee and Granville were valid. Brown Deer, Village of, v. City of Milwaukee (1957), 2 Wis. 2d 441, 86 N.W.2d 487.
Subsequent to the decision of this court on the second appeal, the matter finally proceeded to trial. Brown Deer sought to establish the validity of its five annexation ordinances and the invalidity of an annexation ordinance adopted by the city of Milwaukee. The ordinances in issue are:
No. 31 -- Corrigan Territory -- 10 1/2 square miles
No. 35 -- Brown Deer Park Territory -- 3/4 square mile
No. 53 -- Laun Territory -- 1/4 square mile
No. 32 -- Tripoli Territory -- 1/4 square mile
No. 34 -- Johnson Territory -- 4 1/2 square miles
No. 631 -- Schroedel-West Territory -- 1 square mile
The trial court determined that Brown Deer's ordinances nos. 32 and 34 were valid, but that nos. 31, 35 and 53 were invalid; and that Milwaukee's ordinance no. 631 was invalid. A judgment was entered on September 25, 1959. Brown Deer is appealing from that portion of the judgment which determines that three of its annexation ordinances are invalid, and Milwaukee has moved to review certain matters involved in such appeal. Milwaukee is cross-appealing from that portion of the judgment which upheld the validity of the two Brown Deer annexation ordinances, and which held invalid the Milwaukee annexation ordinance. Brown Deer has moved to review certain questions involved in the appeal taken by the city of Milwaukee.
Further facts will be stated in the opinion.
All of the six annexations involved here were prosecuted under sec. 62.07(1)(a), Stats.1955. This statute provided in part that:
'(1) Annexation procedure. Territory adjacent to any city may be annexed to such city in the manner following:
'(a) A petition therefor shall be presented to the council 1. signed by a majority of the electors in such adjacent territory and by the owners of one-half of the real estate within the limits of the territory proposed to be annexed, or 2. if no electors reside in the said adjacent territory signed by the owners of one-half of taxable property therein according to the last tax roll, or 3. by a majority of the electors and the owners of one-half of the real estate in assessed value; provided, that no petition for annexation shall be valid unless at least 10 days and not more than 20 days before any such petition is caused to be circulated, a notice shall be posted in at least 8 public places in the municipality.'
Most of the issues concern whether the petition for annexation was signed 'by a majority of the electors and the owners of one-half of the real estate in assessed value.'
Each annexation ordinance will be discussed separately.
1. The Corrigan Annexation
The total assessed value of real estate in the Corrigan territory was $3,863,796, so that signatures of the owners of at least $1,931,898 of assessed value would be required for a valid petition. However, the trial court found that the petition contained the signatures of the owners of only $1,922,775 of assessed value, and thus there was a deficiency of $9,123. For this reason the annexation ordinance was held invalid by the trial court.
There are four principal issues raised upon the challenge to this annexation:
1. Whether the signature on the petition made on behalf of the Evert Container Corporation was properly authorized;
2. Whether the interest of Mary Cudahy Keogh, the owner of a remainder interest in real estate devised to her by her father, John Cudahy, with an assessed value of $30,297.75 was represented on the annexation petition by a sufficient signature;
3. Whether the signature of Mr. and Mrs. Mulholland on the petition was sufficient to commit a tract with an assessed value of ...