Liebermann v. City of Milwaukee

• Decision Date: 05 February 1895
• Citation: 89 Wis. 336,61 N.W. 1112
• Parties: LIEBERMANN v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 336

61 N.W. 1112

LIEBERMANN

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Sarah Ann Liebermann, executrix, against the city of Milwaukee and others. From a judgment for defendants, plaintiff appeals. Reversed.

Action to set aside sale of lots 12 and 13, block 83, in the Fourth ward of the city of Milwaukee, for an assessment thereon, and the certificate issued upon such sale. The complaint states, in substance: That the lots abut on Fowler street, between Fourth and Fifth streets, and lie immediately west of the north and south alley in block 83, in the Fourth ward. That the grade of said street was established by ordinance April 14, 1853, and that in the fall of the year 1863 said Fowler street, between Fourth and Fifth streets, was, pursuant to resolution of the common council, graded to such established grade, the roadway thereof graveled, and the sidewalks thereon planked, and the gutters paved, and the cost thereof assessed against lots abutting on said street, and the amount thereof then paid by the then owners of the lots, from whom, by mesne conveyances, said lots were conveyed to the plaintiff. That on the 9th of February, 1891, the common council passed an ordinance changing and lowering the grade of Fowler street, and that on the 20th of April, 1891, a petition was presented to the common council, praying that said Fowler street be improved from Fourth to Sixth streets by grading and paving the roadway, and curbing with stone, and making and paving the gutters thereof, which petition was referred to the board of public works. That the said board recommended said work to be done, as prayed by said petition, and on the 15th of June, 1891, the common council passed a resolution, approved by the mayor, authorizing and directing the board of public works to cause said street to be graded to the last-established grade, and paved with granite block pavement, and the curbing and sidewalks with stone. Pursuant to the charter and the direction of the common council, an estimate of the work and cost of so grading and paving said street was made and delivered to the board of public works, by which it was estimated the cost of doing such work in front of lot 12 would be $319.07, and in front of lot 13, $328.67. That by the said change of grade of 1891 each of said lots was left above said last-established grade, and each of them was greatly injured, and rendered less valuable, by the lowering of the grade of said street, in pursuance of said ordinance and resolution. That the only assessment of benefits and damages made by said board of public works, before making contracts, and ordering the work of grading said street to said last-established grade, and doing the other work provided for, is the following, namely:

“Office of the Board of Public Works. Milwaukee, July 3d, 1891. The following is a schedule of lots, parts of lots, and parcels of land fronting on Fowler street, from Fourth street to Sixth street, in the Fourth ward of the city of Milwaukee; and set opposite each lot, part of lot, or parcel of land is the amount of benefits or damages, or both, which such lot, part of lot, or parcel of land will derive by the change or alteration of the grade of said street from the grade heretofore permanently established by the ordinance, and to which established grade the said street had been actually graded before the ordinance changing the grade of said street, passed February 9, 1891, had been passed, and by the grading and paving with granite-block pavement of the roadway and gutters, and the curbing of the sidewalks with stone on said street, to the newly-established grade, in accordance with the estimate of the city engineer, filed in his office.” (Signed by commissioners of public works.)

+-----------------------------------------------------------------------------+
                ¦Description of   ¦Lot.¦Block.¦Benefits.¦Damages.¦Excess of     ¦Excess of    ¦
                ¦Property.        ¦    ¦      ¦         ¦        ¦Benefits.     ¦Damages.     ¦
                +-----------------+----+------+---------+--------+--------------+-------------¦
                ¦South 2/3        ¦14  ¦82    ¦$252 00  ¦None.   ¦$252 00       ¦             ¦
                +-----------------+----+------+---------+--------+--------------+-------------¦
                ¦* *              ¦*   ¦*     ¦* *      ¦* *     ¦* *           ¦* *          ¦
                +-----------------+----+------+---------+--------+--------------+-------------¦
                ¦                 ¦12  ¦83    ¦400 00   ¦None.   ¦400 00        ¦             ¦
                +-----------------+----+------+---------+--------+--------------+-------------¦
                ¦                 ¦13  ¦83    ¦400 00   ¦None.   ¦400 00        ¦             ¦
                +-----------------+----+------+---------+--------+--------------+-------------¦
                ¦* *              ¦*   ¦*     ¦* *      ¦* *     ¦* *           ¦* *          ¦
                +-----------------------------------------------------------------------------+
                

It was alleged that the board of public works did not indorse said decision and assessment upon the estimate of said cost of said improvements so made and filed in their office as aforesaid, and that, except as aforesaid, the said board never made any assessment of the damages, costs, and charges, including the cost of such improvement, arising from such alteration of grade, to the owners of the several lots, parcels of land, or tenements affected or injured in consequence thereof. The complaint further alleges the advertising and letting of the work; that November 20, 1891, the board of public works, pursuant to the contracts, issued and delivered certificates against said lots for said work,--against lot 12 to the amount of $280.83, and against lot 13 to the amount of $289.08; and that on the 2d day of February, 1892, at the annual tax sale of lands to pay delinquent taxes for the year 1891, the city treasurer sold an undivided one-quarter part of said lots to pay the amount of said certificates, and issued a certificate of sale therefor, in the usual form, to Simon Heller, one of the defendants, the purchaser thereof, who thereafter assigned the same to the defendant Viet, who still owns the same, subject to some right of said Heller therein. The plaintiff alleges payment of the amount of all state, county, and city taxes that remained unpaid on said lots, with interest and charges, except the said taxes or assessment, and claims that said assessment and sale of said lots, and certificate issued...