Dickson v. City of Racine

• Decision Date: 23 February 1886
• Citation: 65 Wis. 306,27 N.W. 58
• Parties: DICKSON v. CITY OF RACINE.
• Court: Wisconsin Supreme Court

65 Wis. 306

27 N.W. 58

DICKSON

v.CITY OF RACINE.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from circuit court, Racine county.

Fish & Dodge, for appellant.

Samuel Ritchie, for respondent.

TAYLOR, J.

This case has been before this court on a former appeal, and it was then decided that the only question to be considered upon the appeal from the assessment of the benefits on the appellant's property was whether the assessment of benefits was equal, in view of the fact that a certain sum was to be assessed upon certain property mentioned in the report of the commissioners, and confirmed by the city council. See 61 Wis. 545, and 21 N. W. Rep. 620. In other words, a fixed sum of money is to be raised by taxing a certain number of lots in said city; and that tax is to be apportioned upon such lots in proportion to the benefits which will accrue to them, respectively, by the opening of the new street in said city. The benefits are to be assessed upon the several lots, not upon the basis of the actual benefits which will accrue to the several lots by the opening of the new street, but upon the basis of comparative benefits to the several lots which must bear the whole assessment in any event.

The case has been again tried by the circuit court upon the theory as laid down by this court on the former appeal. Upon the present appeal the counsel for the appellant insist-- First, that the verdict is unsupported by the evidence; and, second, that the court erred in instructing the jury.

It is urged that because some of the witnesses testified that the mere opening of the street without the construction of a bridge across the river at one end of the street would be no benefit to any of the lots which were assessed for benefits, therefore the assessments upon the appellant's lots were unequal and unjust; and that, in such a case, the only proper assessment would be to assess all the lots equally. We do not think this would follow. In such case the most equitable rule would be to assess the lots according to their value; and, for anything appearing in the evidence, they may have been so assessed. We are, however, of the opinion that in assessing benefits the commissioners and jury would be justified in taking into consideration the benefits which would accrue to the lots from the expectation that a bridge would be constructed across the river, at the end of the street, within a reasonable time. The reason for opening the street was to make an approach to a bridge, the construction of which was contemplated by the city in the near future. It would seem absurd to say that such fact should have no effect in estimating benefits. The opening of this street in question rendered it practicable for the city to construct a bridge, at the end of it, across the river, and without this street no such bridge could have been constructed which would have been of any public use. The opening of the street rendered it practicable to build a bridge at that place across the river, which would be a great public convenience; and, it appearing also that it was almost a public necessity to have a bridge at that place, it would seem reasonable that such fact would tend to enhance the value of the property in the vicinity of such new street, and it was for the jury to determine whether that fact did or would enhance the value of the plaintiff's lots. This view of the case was entertained by the supreme court of Ohio in the case of Chamberlain v. Cleveland, 34 Ohio St. 551-568. We think the ruling of the circuit court upon this question on the trial of this case was sufficiently favorable to the appellant. We do not deem it profitable to discuss the questions of fact upon the evidence. We think there is evidence to sustain the verdict as to the amount of the benefits, and that is sufficient to sustain the verdict in this court.

It is insisted that the circuit judge erred in instructing the jury as follows: “Nor can you reduce plaintiff's assessments on the ground that, in your opinion, the total amount of the assessments in this matter is too large, because the determination of the commissioners in fixing the assessment district, and in fixing the total amount of the special assessments, is conclusive,...