Anderton v. City of Milwaukee

• Decision Date: 03 May 1892
• Citation: 52 N.W. 95,82 Wis. 279
• Parties: ANDERTON v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

82 Wis. 279

52 N.W. 95

ANDERTON

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by James J. Anderton against the city of Milwaukee for an injunction. From an order continuing a preliminary injunction, defendant appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

This action was commenced July 22, 1891. The complaint alleges, in effect, that the plaintiff is a resident and taxpayer of the city, and is now, and for the past 5 years has been, the owner in fee of lot 1, and the N. 1/2 of lot 2, in block 48, of the Second ward of the city, which lots are bounded on the west by Third street, having a frontage thereon of 60 feet, and on the north by Prairie street, having a frontage thereon of 147 feet; that there is a building on said lots of 60 by 70 feet, with a cellar and brick foundations, of the value of $13,000, and paying an annual rental of over $2,500, with free and unimpeded access to and egress from said premises, on a level with the sidewalk in front thereof; that June 27, 1859, the city caused to be permanently established, in accordance with the provisions of the charter then in force, the grade of said Third street in front of said premises; that to bring said Third street to the grade so established, necessitated the filling of said street in front of said premises between 3 and 4 feet; that the city ordered and caused said Third street to be actually filled and graded to said established grade, and a stone pavement to be laid thereon; that the city charter then in force provided that, should the grade so established be at any time thereafter altered, all damages, costs, and charges arising therefrom should be paid by the city to the owners of any lots or parcels of land affected or injured thereby; that at the time named the brick building mentioned was standing on the lots aforesaid, and after said ordinance was in full force and effect the plaintiff's grantors, then owning said lots and building, laid out and expended large sums of money in the raising of said building, and in fitting and accommodating the same, and its doors and windows, floors and cellar, to the grade or level, for the convenience and accommodation of the business carried on in said building, and with the express view to the grade of said Third street, so then established and graded; that said provisions of the charter remained in full force and effect until the revision thereof by chapter 184, Laws 1874, which provided, in effect, that “in all cases in which the grade of any street has been permanently established by ordinance since February 20, 1852, or should hereafter be so established, and after such permanent establishment thereof, and after such street should have been actually graded to such established grade, the grade so established has been or shall be altered by the said city, the owner of any lot or parcel of land which may be affected or injured in consequence of such alteration shall be entitled to compensation therefor;” that by chapter 254, Laws 1891, the common council of the city was authorized and empowered by ordinance to revise, alter, change, and establish the grade of all streets, alleys, and sidewalks from Grand avenue to Vliet street, and from the Milwaukee river to Ninth street, in the Second and Fourth wards of the city, and thereupon, from time to time, in its discretion, to cause the same to be graded or otherwise improved, in conformity to the new grades thus permanently established, without paying for any damage or injury thereby occasioned; that in pursuance of said chapter 254, Laws 1891, and on May 18, 1891, the city passed an ordinance to the effect mentioned in said act, and whereby it is proposed to raise the grade of said Third street in front of the plaintiff's said lots, without any petition or consent of any lot owner, and cause said Third street to be filled in front of said lots to the extent of about 53 cubic yards, thereby raising the grade so as to leave the lower floor of the building, and entrance to the store therein, nearly 2 feet below said grade, and thereby render possession thereof valueless, depriving the plaintiff of said rental value, to his great and irreparable damage and injury; that the city had advertised for bids, and had threatened to open the same July 23, 1891, and to award contracts for raising said grade and raising said street and erecting said sidewalk, as aforesaid; that the proposed filling and raising of said Third street in front of the plaintiff's lots would be nearly 2 feet higher than the lower floor of said building, and would necessitate either the raising of the building, at an expense of several thousand dollars, or tearing down the same and building anew; that the plaintiff was...