Haubner v. City of Milwaukee

• Decision Date: 13 December 1904
• Citation: 101 N.W. 930,124 Wis. 153
• Parties: HAUBNER v. CITY OF MILWAUKEE. HAUBNER v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 153

101 N.W. 930

HAUBNER

v.CITY OF MILWAUKEE.

HAUBNER

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Dec. 13, 1904.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Separate actions by Frank Haubner against the city of Milwaukee and against the city of Milwaukee and others. From judgments for plaintiff, defendants appeal. Reversed.

November 5, 1903, the plaintiff, as owner of lot 6 in block 13, having a front on Fifth street of 50 feet, commenced this action at law in the superior court for Milwaukee county to recover damages for cutting down the street in front of his lot, and thereby injuring his premises. The complaint alleges, among other things, in effect, that March 14, 1900, the city, by ordinance, permanently established the grade of Fifth street from Burleigh street (being the street next south of the plaintiff's lot) north to Ring street, and beyond several blocks north of the plaintiff's lot; that by such grade the center of Auer avenue (being the first street north of plaintiff's lot) was 20 feet higher than the center of Burleigh street, and the south line of Ring street, which is the first street north of Auer avenue, was 43 1/2 feet higher than Burleigh street; that May 19, 1902, the board of public works recommended the grading and macadamizing of Fifth street; that July 14, 1902, the common council, by resolution, directed the board of public works to improve Fifth street, as recommended, from Chambers street (being the first street south of Burleigh street) to Ring street; that August 25, 1902, the board transmitted to the common council its assessment of benefits and damages to the lots fronting on Fifth street between Chambers street and Ring street by reason of such improvement, dated August 15, 1902, reciting that it viewed the premises August 6, 1902, and that the benefits to the plaintiff's lot No. 6 were $175 (that is to say, $3.50 per front foot), and his damages nothing; that the benefits to each and all the lots on both sides of Fifth street between Burleigh street and Ring street were assessed therein at $3.50 per front foot, and no damages were assessed to any of said lots; that such assessment was unlawful, arbitrary, and not made on view of the premises, nor, as to the effect of the grading as to each lot or piece of land, separately, but was falsely and arbitrarily made, as mentioned, at the office of the board, without personal inspection, and without considering the damage to the lots, respectively, and such assessment was based solely upon the cost of the improvement per front foot; that the board well knew that the plaintiff's lot would be injured at least to the extent of the special assessment certificate to be issued thereon, and for which injury no consideration or allowance was made; that the original surface of the center line of Fifth street between Burleigh and Ring streets varies more than 42 feet from a level; that on the east line of Fifth street such variation is more than 37 feet, and on the west line of such street such variation is 43.49 feet; that the grading of Fifth street in question varies from the fill of 5 or 6 feet to a cut of from 10 to 12 feet along various parts thereof, but that the board made a uniform assessment of benefits of $3.50 per front foot, and awarded nothing for damages or injury; that August 30, 1902, the common council adopted such assessment, and thereafter let the contract for such improvement to the contractor, the defendant Froemming, in the equity suit, under and in pursuance of said assessment, and, by the authority and direction of the city, proceeded to do the work; that such work was so negligently and improperly performed that the plaintiff's approach to his lot along the entire front was blocked and shut off by a vertical wall of earth from 8 to 10 feet in height, to the plaintiff's great damage; that the cost of cutting and filling in front of the plaintiff's lot was $79.80, and all other 50-foot lots varied from $4.20 to $86.70--and prays judgment for $2,000 as damages.

January 21, 1904, the defendant answered such complaint, by way of admissions, denials, and counter allegations. February 13, 1904, the plaintiff commenced an action in the circuit court to annul the assessment certificate, and to cancel and set aside the same and for an injunction. June 4, 1904, the defendant served its answer in such equity suit so pending in the circuit court. June 10, 1904, the action at law was called for trial in the superior court. Thereupon the defendant asked leave to amend its answer setting up the pendency of the equitable action in the circuit court, and asked that the venue of the action at law be changed to the circuit court for the convenience of witnesses, under subdivision 3, § 2622, Rev. St. 1898. The plaintiff objected to such change of venue, and offered to accept the amended answer and to proceed to trial at once; and thereupon the defendant amended its answer in the action at law by alleging the pendency in the circuit court of the equity suit against the city and its treasurer and one Froemming, the contractor. The court then stated that both cases ought to be tried by the same judge; that the party who was ready was entitled to proceed with his case first. It was then stipulated in open court that the venue of the equity suit be changed to the superior court for trial as soon as an order to that effect could be made. The court then directed counsel to proceed with the trial of the action at law, which had already been called. The defendant then expressed a desire to try the equity suit first, to which the plaintiff objected; and the court concluded to try the law case first, and then dispose of the equity case afterwards. Thereupon the court and jury, without objection, viewed the premises. The defendant then asked that the cases be tried together and consolidated, which motion was denied, and the court stated that the cases would be tried together--that is, the trial of the equity case would follow the trial of the law case--to which the defendant's attorney expressed himself satisfied. Thereupon the action at law was tried on the 10th and 13th of June, 1904, and at the close of the trial the jury returned a special verdict to the effect (1) that the property of the plaintiff was depreciated in value by the grading of Fifth street; (2) that the difference in value of such property immediately before and immediately after such grading was $200. That such verdict was filed June 14, 1904. That June 13, 1904, the same court and judge entered upon the trial of the equity suit. June 18, 1904, the court ordered judgment on the special verdict in the action at law for $200, with costs and disbursements to be taxed. July 2, 1904, the defendants moved for a stay of proceedings therein, and that the court order a reassessment, and the same was denied, to which the defendants excepted. July 6, 1904, judgment was entered, filed, and docketed on such verdict for the amount stated. July 7, 1904, the same court filed its findings of fact and conclusions of law, based upon the same evidence as in the action at law, and the facts found are substantially as alleged in the complaint in the action at law, and above stated; and, in addition, found to the effect (11) that the plaintiff's lot was not benefited by such grading and improvement of Fifth street, in excess of the injury to his premises, but, on the contrary, such injury was in excess of all benefits derived therefrom; (12) that the contractor completed his work under the contract, and the city issued and delivered to him a certificate of the board of public works for the work so performed, which certificate was a lien upon the plaintiff's lot, but that the contractor had, before the commencement of this action, and service of the injunctional order herein, in good faith, and for value received, duly sold, assigned, and transferred the same, and all his right, title, and interest therein, to a third person, unknown to the court, in whose hands the same now is.

As conclusions of law, the court found, in effect, (1) that the assessment of benefits and damages was wholly arbitrary and without authority of law, and was illegal and void; (2) that the city and the contractor were without jurisdiction to grade and improve the street as prescribed by the resolution of the common council; (3) that the damages sustained by the plaintiff by reason thereof were in excess of any benefit derived therefrom; (4) that the certificate issued to the contractor was so issued without authority, and was void, and should be delivered up for cancellation; (5) that the city and its treasurer should be permanently restrained from selling, or offering or attempting to sell, the plaintiff's property by reason of such certificate or any proceeds under said assessment; (6) that the plaintiff was entitled to judgment for a permanent injunction against the city and its treasurer, and that the certificate be declared null and void, together with costs and disbursements to be taxed--and ordered judgment to be entered accordingly. Judgment was so entered July 7, 1904, and on the same day the city and its treasurer brought this appeal; and the city also on the same day appealed from the judgment so entered in the action at law.

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

Hamilton, Van Wyck & Silber, for respondent.

CASSODAY, C. J. (after stating the facts).

Error is assigned because the court refused to consolidate the action at law with the suit in equity, and also refused to try the equity suit first. No such question was suggested until after the superior court had entered upon the trial of the action at law, nor until after the city had asked and obtained leave to amend its answer, setting up the pendency of the suit in equity in the circuit court, and the city had sought and failed to have the venue in the action at law...