McDonald v. City of De Pere

• Decision Date: 06 October 1959
• Citation: 98 N.W.2d 407,8 Wis.2d 16
• Parties: Chester S. McDONALD et al., Appellants, v. CITY OF DE PERE, Respondent.
• Court: Wisconsin Supreme Court

Page 407

98 N.W.2d 407

8 Wis.2d 16

Chester S. McDONALD et al., Appellants, v. CITY OF DE PERE, Respondent.

Supreme Court of Wisconsin.

Oct. 6, 1959.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for appellants.

Albert S. Vanden Heuvel, City Atty., De Pere, for respondent.

CURRIE, Justice.

Sec. 62.16(1), Wis.Stats., provides that a property owner may maintain an action against a city to recover the damages sustained to his property as a result of the common council of the city changing the 'permanently established grade of any street.' Here the plaintiffs' claim for damages arises by reason of an alleged change in grade of a public sidewalk. However, such a sidewalk lies within the boundaries of the street and the statute embraces a change in grade of such sidewalk. Worth v. Town of Westfield, N.J.1913, 90 A. 727, and Annotation 156 A.L.R. 416, 420.

While the common council of the defendant city had by ordinance in 1908 established a grade for such sidewalk there is no evidence that any walk had ever been constructed at the level thereby prescribed. Therefore, such 1908 grade is what is termed by the authorities as a 'paper' grade. The present public sidewalk, which conforms to the newly established grade of 1953, is but 2 1/4 inches higher than the 1908 grade at the south boundary of the plaintiffs' premises and at a point a short distance north of the south private driveway the 1908 grade crosses the 1953 grade so that at the north end of the plaintiffs' property the new public sidewalk is lower than the 1908 grade, although still approximately six inches higher than the grade of the prior existing sidewalk. The plaintiffs make no claim that the established grade was lowered, but base their damages entirely on the claim that it was raised. The city engineer testified that, if the plaintiffs' private walk or driveways had been built at the level of the 1908 grade, only minor changes would have had to have been made in order to conform them to the new 1953 grade.

The plaintiffs contend that the two grades, between which a comparison is to be made in order to establish their damages, are the actual grade of the public sidewalk as it existed prior to 1953 and the newly established 1953 grade. If the plaintiffs be correct in this premise, then the evidence without dispute establishes their minimum damages to have been $960.35. While the true measure of damages is the value of the property immediately before and after the change in grade, the cost to the owners of replacing improvements to make the property usable is material evidence of such difference. Milwaukee Trust Co. v. City of Milwaukee, 1912, 151 Wis. 224, 138 N.W. 707.

On the other hand, the defendant city takes the position that the comparison to be made is between the 1908 paper grade and the newly established 1953 grade, so that the actual grade of the public sidewalk as it existed prior to the undertaking of the 1953 improvement is immaterial. Inasmuch as the plaintiffs' damages would be very much less, if this be the test, we have searched the record in vain for any evidence showing what such damages would amount to. The defendant city maintains that in finding no damages the jury acquiesced in the defendant's theory that the change in grade giving rise to the plaintiffs' cause of action was that between the 1908 paper grade and the newly established 1953 grade. It is defendant's further position that the jury was warranted in finding no damages because the plaintiff had failed to offer any proof based upon a change in grade grounded upon the 1908 grade.

Apparently the two private driveways and the private sidewalk leading to the house had been built by a predecessor in title of the plaintiffs to conform to the level of the previously constructed public sidewalk. There is no direct testimony in the record to this effect, but this is the inference we gain from reading the record. There is also a complete lack of any evidence as to whether the city had built, or exercised any control over the building of, this public sidewalk which was replaced by the 1953-1954 construction project. However, we take judicial notice of the fact that it is the usual practice for cities to either directly build public sidewalks, or to prescribe the levels at which the same are to be built if the work is done by the property owners or their contractors. Whether this was the case here can only be determined by a new trial.

This brings us to what we consider to be the controlling question in this case: If a city establishes a paper grade for a sidewalk and then is responsible for the sidewalk being built at a level materially different from such established grade, is the city estopped from asserting that the previously established paper grade is different from the actual grade of the walk as against a property owner, who makes improvements to his property in reliance upon such actual grade being the established grade, and suffers damages because such grade is subsequently changed by the city? This issue was not litigated in the trial below.

The authorities are clear that the mere establishment by ordinance of a paper grade changing an existing grade will not, in itself, give rise to an...