Damkoehler v. City of Milwaukee

• Decision Date: 13 December 1904
• Citation: 101 N.W. 706,124 Wis. 144
• Parties: DAMKOEHLER v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

124 Wis. 144

101 N.W. 706

DAMKOEHLER

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Dec. 13, 1904.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Emma Damkoehler against the city of Milwaukee. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action to recover damages for injury to plaintiff's property, resulting from the acts of the city of Milwaukee in grading Hadley street, a public street of the city. The premises in question are described as the east 112.50 feet of lot 6 and lot 7 in block 8 in Wechselberg & Elliott's Subdivision of Lots C and D in the Thirteenth Ward of the city of Milwaukee, except the north 5.80 feet thereof, which part borders on the south limits or line of Hadley street, and lies between this street and plaintiff's premises. The premises front on Island avenue, a public street of the city, which intersects Hadley street at right angles, runs north and south, and lies to the west of plaintiff's property. Plaintiff became owner of the premises in 1895, and has owned them ever since. The city graded Hadley street in 1894 and 1895, and it is claimed that such grading was unlawfully done, and without authority of law. The grading is alleged to have injured plaintiff's property through the unlawful digging up, excavating, removing, and carrying away of the earth from this street to a depth of from 8 to 20 feet in parts of the street adjacent to these premises, and it is alleged that this grading, excavating, and removing of the earth from the street removed the natural banks and lateral support of lot 6, and caused the 5.80 feet strip and a large portion of plaintiff's part of lot 6, above described, to subside and slide into the excavated street, to plaintiff's injury and damage. The grading causing this result is alleged to have been negligently and carelessly done by the city, through its authorized officers and agents. The grading and excavating was done to change the natural surface of the street and bring it to the grade which had been established by the city council. It did not involve the change of any former grade in the street. It appears that the work was done under a proceeding by the city to improve Hadley street, pursuant to the authority vested by charter in the city for the improvement of streets, and to charge the cost of such improvement upon the abutting real estate. The action was tried before the court. No bill of exceptions is certified to this court. It appears from the record before us that at the conclusion of the testimony the court decided that the attempted proceeding by the city for the improvement of this street at the expense of the abutting owners was defective and void, but that it was not a defect going to a want of authority to make the improvement and charge plaintiff's premises for a proportionate share of the cost, and that the defect in proceeding was curable under the provision of a reassessment law. Thereupon the court ordered that the city proceed to make such reassessment under the law which authorizes reassessments of benefits and damages in cases of such attempted street improvements, and stayed all further proceedings until otherwise ordered. The fact that plaintiff's premises do not abut on Hadley street is not controverted. The court entered an interlocutory judgment, upon findings as above indicated, staying all proceedings, and allowing the city the right of reassessment of benefits and damages under the proceeding instituted for the improvement of the streets. This is an appeal from such judgment. The decision on the motion for a new trial was held in abeyance by the court, as not necessarily to be determined at this stage of the action.Hamilton, Van Wyck & Silber, for appellant.

Carl Runge, City Atty., and R. S. Witte, Asst. City Atty., for respondent.

SIEBECKER, J. (after stating the facts).

It is an uncontroverted fact upon the record before us that plaintiff's premises do not front or abut upon Hadley street. A strip of land 5.80 feet in width lies between Hadley street and the portion of lot 6 owned by the plaintiff. (This situation of her premises leaves them removed from the southerly margin of Hadley street by the width of this strip.) The defendant's charter (section 2, c. 7) provides that “grading, graveling, and planking, macadamizing, or paving to the center of any street or alley * * * shall be chargeable to and payable by the lots fronting or abutting upon such street (or) alley, * * * to the amount which * * * (it) * * * shall be adjudged * * * to benefit such lots.” The city sought to charge upon plaintiff's premises, as an abutting owner, a proportionate share of the costs of this improvement, underthe power conferred by this section of its charter. Is plaintiff such an owner under these provisions? An examination of these provisions and those on kindred subjects in the charter leads us to the opinion that it was intended to include within the phrase “lots fronting or abutting upon such street (or) alley” only the property which borders on the street or alley being improved. Jenkins v. Rock Co., 15 Wis. 11; 1 Am. & Eng. Encyc. of Law, 224. Since plaintiff's premises did not border on Hadley street, no liability could attach to charge her premises with part of the expense. Under these circumstances she was not an interested party to the proceeding for the improvement of this street and the payment of its cost by abutting owners, and she therefore cannot rely on any defect or irregularity in the proceeding as a ground for the recovery of damages for injury to her premises. The liability of abutting owners for a proportionate share of the costs of such improvements gives them the right to insist on compliance with the provisions of the charter to which the city is restricted in making them. A failure on the part of a city to follow the prescribed course of procedure for the exercise of this power is deemed a violation of the abutting owner's statutory right, and constitutes a legal ground for the recovery of damages resulting from the unauthorized acts of the city. This has been repeatedly ruled in cases before this court, cited in the recent case of City of Waukesha v. Randles, 98 N. W. 237. Since no cause of action can arise in plaintiff's favor on account of any failure by the city to comply with these charter provisions, any discussion of the subject of a reassessment under the statutes in cases of this nature is unnecessary, for they obviously cannot apply, for plaintiff's property is not within the assessing district of this improvement.

It is argued that, if plaintiff has no cause of action upon this ground, she has a cause of action at common law for damages caused by the negligent and wrongful conduct of the city's officers and agents in grading and excavating the street. She avers that the grading, excavating, and removing of the material from...