Gross Coal Co. v. City of Milwaukee

• Decision Date: 13 January 1920
• Citation: 175 N.W. 793,170 Wis. 467
• Parties: GROSS COAL CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

170 Wis. 467

175 N.W. 793

GROSS COAL CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by the Gross Coal Company against the City of Milwaukee. From an order setting aside a verdict in favor of defendant, it appeals. Affirmed.

This action is brought to recover damages alleged to have been sustained by the plaintiff as the owner in fee simple of a certain piece of property in the city of Milwaukee, with 531 feet frontage on First avenue, by reason of the construction by defendant of a viaduct on First avenue in front of these premises. The viaduct was constructed under the provisions of chapter 376 of the Laws of 1901, which provided by section 2 thereof as follows:

“Sec. 2. Whenever the common council of such city shall have determined to erect and construct such a viaduct it shall cause to be made a complete profile plan and detailed specifications for the work, with an estimate of the cost thereof, and as soon thereafter as practicable the city may enter upon the construction of said viaduct, bridges, stairways and approaches in conformity thereto, and all provisions of law relative to public work or improvements in said city, which are not inconsistent with the provisions of this act shall apply to the work hereby authorized, and all official acts incidental thereto. If by the construction of such viaduct in the manner so provided any damages shall be sustained by the owners of abutting property, to the property owned by them, such damage shall be ascertained and determined in the manner provided by law for the determination and assessment of damages for the alteration of the grade of a street in said city and shall be paid as hereinafter provided.”

The complaint contained the following:

“14.--The plaintiff further alleges that the said city of Milwaukee proceeded to make the said change and alteration of said grade, and to construct the said viaduct, without having previously made any assessment of damages resulting to the plaintiff from said change of grade and from the construction of said viaduct, and without having made any provision for the ascertainment and payment of any damages to the plaintiff.”

The answer contained the following:

“16.--Further answering, the defendant admits that the construction of the viaduct along First avenue was made without having previously made any assessment of damages and without having made any provision for the ascertainment and payment of any damages to any persons owning property fronting on and along said First avenue at the place where said viaduct was erected.”

In the first trial a general verdict in favor of defendant was rendered. That verdict was set aside by the late Judge Tarrant and a new trial granted, which ruling was affirmed by this court. 148 Wis. 72, 134 N. W. 139. On the second trial the jury found by their special verdict now before us that the fair market value of plaintiff's property was not depreciated by the construction of the viaduct. The trial court denied defendant's motion for judgment upon the verdict, and ordered that such answer of the jury be set aside and a new trial granted, upon the ground that the said verdict is against the clear preponderance of the evidence and the justice of the case. From such order the defendant has appealed.Clifton Williams, City Atty., John M. Niven, First Asst. City Atty., Mark A. Kline, Chas. W. Babcock, Walter J. Mattison, Jos. L. Bednarek, and Raymond F. Jaekels, Asst. City Attys., all of Milwaukee, for appellant.

Lenicheck, Boesel & Wickhem, of Milwaukee, for respondent.

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

The appellant insists that the order of the circuit court should be reversed upon two grounds: (1) That no such action at law can be maintained by the plaintiff, and that its sole remedy is under section 12, chapter 7, of the charter of the city of Milwaukee by way of appeal from any assessment of benefits and damages. (2) That in absence of misconduct of counsel or error by the court, and with a second jury arriving at the same conclusion as did a first, there no longer exists any discretionary power in the trial court to set aside such verdict or grant a new trial.

Action by the city authorities to have ascertained and determined the damages, if any, to abutting property owners by reason of the erection of such structure under chapter 376, Laws...