N. Pac. Ry. Co. v. Douglas Cnty.

• Decision Date: 21 February 1911
• Parties: NORTHERN PAC. RY. CO. v. DOUGLAS COUNTY ET AL.
• Court: Wisconsin Supreme Court

145 Wis. 288

130 N.W. 246

NORTHERN PAC. RY. CO.

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

Feb. 21, 1911.

Syllabus by the Judge.

A law for charging, to some extent, the cost of improving that part of the roadway of a street directly in front of parcels of land abutting thereon, lying between the curb line and the center of such roadway, has reference only to the expense incurred within such boundaries.

A law authorizing improvement of a street at the expense in whole or in part of parcels of land abutting thereon or adjacent thereto, includes only parcels fronting on that part of the street improved or which adjoins such parcels and are adjacent to the street.

In such a law, nothing appearing clearly to the contrary, “abutting” and “adjacent” are not used synonymously. The former contemplates the street boundary toward the lot as identical with the boundary of the latter toward the former, while the idea of the latter is a parcel near by the street but separated therefrom by an intervening abutting strip or parcel.

A law providing that, in case of the owner of a parcel of land affected by a street improvement being aggrieved in any way by reason of any determination of the administrative body as to burdening such parcel on account of such improvement, his sole remedy shall be by appeal to the circuit court, is mandatory and exclusive precluding jurisdiction being exercised in any other way in law or in equity as to any real estate within the calls of the statute.

In the foregoing the words “affected by the improvement” limit the remedy to such parcels of real estate as the administrative board dealing with the matter would have jurisdiction under any circumstances to affect thereby.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by the Northern Pacific Railway Company against the County of Douglas and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Equitable action to restrain a sale of land for nonpayment of delinquent special taxes.

The issues presented for trial are indicated, in a general way, by the following summary of the findings: Proceedings were duly had under the charter of the city of Superior to determine the amounts respectively chargeable to various parcels of real estate abutting on or adjacent to that part of Winter street in said city it was proposed to pave, which portion included plaintiff's property. In such proceedings the amount was determined chargeable to said property challenged in this case. The assessing board acted within its discretion in including said property in the district benefited by the improvement. Such findings covered in a general way the subject of the litigation. Judgment was given in defendant's favor on the conclusion and order of the court following such findings.

Hanitch & Hartley (C. W. Bunn and M. T. Sanders, of counsel), for appellant.

W. R. Foley, for respondents.

MARSHALL, J. (after stating the facts as above).

The findings do not disclose with reasonable definiteness the points litigated. The facts are that the city of Superior in due course--if the land of appellant were chargeable under section 959--35, St. 1898, with any special tax because of the work on that part of Winter street improved--imposed thereon the tax in question. The land abutted on Winter street, but not on that portion improved. Such portion did not reach nearer to appellant's land than about 350 feet. In view thereof counsel for appellant insisted, as appears on the trial, and do so now, that the land was improperly burdened because it did not abut on that portion of the street which was paved. The language of the section is as follows:

“No property fronting on any street or avenue shall be exempt from any assessment of benefits on account of the paving thereof with a permanent pavement having a concrete foundation until such property shall have paid in the aggregate in assessments for street pavements in front thereof the sum of three dollars per square yard for all that part of the roadway directly in front of or abutting the same and lying between the curb line and the center of such roadway. Where any property has paid less than said amount, it shall be held liable for any difference up to the amount of three dollars.”

It is considered that the quoted language is too plain to warrant applying thereto rules for construction. The improvement was not directly in front of the parcel of land charged with the tax, nor even within the vicinity thereof. Therefore, the situation was entirely outside the calls of the statute.

Counsel for respondents insist that the tax is warranted by section 119 of the city charter, which reads as follows:

“Before any established grade shall be changed or any work shall be ordered done on any street in whole or in part at the expense of the abutting or adjacent real estate, the board of public works shall view the premises and determine the benefits and damages which will accrue to each parcel of such real estate by such change or alteration of grade; the entire cost of the contemplated work or improvement on the street, the benefits and damages that will accrue to the several parcels of such real estate by such work or improvement, and the amount that should be assessed under the provisions of this chapter, to each parcel of real estate to be benefited, as benefits accruing thereto by such contemplated work or improvement.” Section 119, c. 124, ...