Colclough v. City of Milwaukee
Decision Date | 28 January 1896 |
Citation | 65 N.W. 1039,92 Wis. 182 |
Parties | COLCLOUGH v. CITY OF MILWAUKEE. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Milwaukee county; R. N. Austin, Judge.
Action by Henry Colclough against the city of Milwaukee to enjoin defendant from constructing an approach to a viaduct on the street on which plaintiff's property abuts. From an order overruling its demurrer to the complaint, defendant appeals. Reversed.
This action was brought to obtain a perpetual injunction forever restraining the defendant, its officers, agents, etc., from proceeding with or continuing the work of constructing or erecting a certain viaduct or approach thereto on Sixteenth street, between Clybourn street and St. Paul avenue, in said city; the plaintiff being the owner in fee of block 261, on the west side, and block 262, on the east side, of said Sixteenth street, within the entire limits aforesaid. It is alleged in the complaint, in substance, that Sixteenth street runs north and south between said blocks, and is of the uniform width of 70 feet, and that said blocks abut upon the north on said Clybourn street, and on the south on St. Paul avenue, and that all of said streets are public highways in said city, the grade of which had been duly established by ordinance, assuming as a base or datum the level of the Milwaukee river as it was in March, 1836, the grade of Sixteenth street being a straight line from Clybourn street, which was 50 feet above said datum, to St. Paul avenue, which was 7 feet above it; that the city, acting under chapter 122, Laws 1891, had taken proceedings to condemn a strip of land 70 feet wide, from a certain point on the south side of the city, in a northerly direction, to the intersection of said Sixteenth street and St. Paul avenue; and that, by the plan of construction adopted, the north approach to the viaduct starts between the plaintiff's said blocks, at the intersection of said Sixteenth street with Clybourn avenue, at a grade of 50 feet as aforesaid; then passing along said Sixteenth street, between said blocks, sloping in a distance of 72 feet, to a point 49 feet above said datum line; thence, sloping to a point in said viaduct 196 feet south of St. Paul avenue, to a grade 38 feet above said datum line. The viaduct and approach is to consist of a roadway with a sidewalk on each side, having a total width of 70 feet, to be supported by iron beams, resting on sets of iron columns, and extending three abreast the full width of 70 feet, resting on stone pedestals, distant from each other from 27 to 67 feet; and the north end of the viaduct is to rest upon stone piers or abutments erected on said Sixteenth street, at a point 72 feet south of the south line of Clybourn street, which is between the plaintiff's said blocks, 261 and 262. It is further alleged that the defendant had entered upon Sixteenth street between the points mentioned, and was engaged, by its agents, servants, etc., in digging up the surface of the street, and placing material thereon for the construction of said abutments and viaduct, according to said plan, and that it gave out and threatened it would complete same accordingly; that the viaduct and approach would use and occupy the whole of Sixteenth street between said Clybourn street and St. Paul avenue, and between the plaintiff's said blocks, south of a point 72 feet south of Clybourn street, and would wholly and entirely obstruct said part of Sixteenth street, and render plaintiff's said premises entirely inaccessible for teams and wagons from Sixteenth street, except from the 72 feet south of Clybourn street, and would intercept the light and air from any building which might thereafter be constructed thereon, and would greatly and irretrievably injure and impair the enjoyment and value of plaintiff's property; and that the defendant had not purchased, acquired, or condemned, or taken any proceedings to condemn, said land on Sixteenth street between Clybourn street and St. Paul avenue, for the purpose of constructing said viaduct and approach. The plaintiff prayed for a judgment for a perpetual injunction, as stated, and for other relief, etc. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The court made an order overruling the demurrer, from which the defendant appealed.Charles H. Hamilton, for appellant.
Frank M. Hoyt, for respondent.
PINNEY, J. (after stating the facts).
It was held in Harrison v. Board, 51 Wis. 647, 662, 8 N. W. 731, to be the settled law in this state that in the absence of any law giving the owners of real estate adjoining a public street or highway a right to recover damages of the city, village, town, or county in which the same is situated, on account of the change of the grade of such street or highway, no damages can be recovered on account of such...
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