Owens v. City of Milwaukee

• Decision Date: 06 November 1879
• Citation: 3 N.W. 3,47 Wis. 461
• Parties: OWENS v. THE CITY OF MILWAUKEE
• Court: Wisconsin Supreme Court

3 N.W. 3

47 Wis. 461

OWENS v. THE CITY OF MILWAUKEE

Supreme Court of Wisconsin

November 6, 1879

APPEAL from the County Court for Milwaukee County.

The case is thus stated by Mr. Justice TAYLOR:

"This action is brought by the plaintiff against the city of Milwaukee to recover for the expenses of raising the grade of the street in front of the plaintiff's lot in said city and for damages to said lot by reason of changing the grade and filling the street up to such new grade.

"The plaintiff alleges that the grade of said street had been fixed and established in 1853, and the street graded in accordance therewith and paved, and that afterwards, in 1873 the common council of said city, pretending to act under the provisions of section 6, ch. 129, Laws of 1873, changed such established grade and raised the same several feet in front of said lot, and ordered such street to be filled in front thereof up to such new grade; that, in pursuance of such order, the plaintiff filled the street in front of his lot up to such grade; that afterwards the said city, pretending to act under the provisions of chapter 322, Laws of 1875, caused said street to be repaved, and plaintiff was compelled to pay a part of the expense of repaying the same; and that the expense of filling and paving was about the sum of $ 300. The complaint sets out the proceedings of the common council and of the board of public works, relative to the establishment of such new grade and the filling and paving of the same from which proceedings, as set out in the complaint, it is apparent that so much of them as relate to the proceedings under which it is claimed the work of filling the street up to the new grade was ordered, were entirely void; but, as we shall hereafter show, the subsequent proceedings for paving the street were apparently valid and regular. The plaintiff claims as damages the said sum of $ 300, the cost of filling and paving said street, and the further sum of $ 1,000 as damages to his lot occasioned by reason of filling such street up to the new grade.

"To this complaint the city demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court below, and the plaintiff appealed."

Order affirmed.

Frank B. Van Valkenburgh, for the appellant.

D. H Johnson, for the respondent.

DAVID TAYLOR, J. EDWARD G. RYAN, C. J., no opinion.

OPINION

DAVID TAYLOR, J.

In order to understand the grounds of the defendant's demurrer, it becomes necessary to state some of the provisions of the charter of the city which have a direct bearing upon the questions raised by said demurrer.

Section 18 of subch. 10 of ch. 56, Laws of 1852, which is an act to consolidate and amend the charter of the city of Milwaukee, provides for the establishment of the grade of all the streets, sidewalks and alleys in said city, and that "when the grade so established shall be thereafter altered, all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot or parcel of land or tenement which may be affected in consequence of the alteration of such grade."

Section 3, ch. 401, P. & L. Laws of 1870, provides that whenever the board of public works of the city of Milwaukee shall deem it necessary to grade or otherwise improve any street, alley, sidewalk or public ground, they shall cause an estimate of the cost of such improvement to be made, and report the same to the common council, and, if approved by the council, the board may cause the work to be done, etc. Section 4 provides that before ordering any such work to be done, such board shall view the premises and consider the amount proposed to be made chargeable against the several lots, and the benefit which in their opinion will actually accrue to the owners of the same in consequence of such improvement; and in effect makes the lot chargeable with such part of the cost of the improvement as they shall consider it benefited thereby. Section 5 provides that the board shall give notice to the owners, in the official paper, that an assessment of benefits for such improvement is ready for inspection in their office, and require him to do the work within a certain time; gives the owner, if not satisfied with the assessment of benefits, the right to appeal to the common council, and if upon such appeal he is dissatisfied with the decision of the common council, to appeal from their decision to the circuit court.

Section 4, ch. 129, Laws of 1873, amendatory of section 5, ch. 401, P. & L. Laws of 1870, reads as follows: "Section 4. All persons owning or having any interest in any property affected by such assessment, shall, within ten days after the first publication of notice by the city clerk of the said city that such assessment has been reported to the common council, have a right to appeal therefrom to the said common council, and have the same right of appeal now provided by law from the said common council to the circuit court of Milwaukee county. But no such appeal to the said common council shall be taken after the expiration of ten days, as provided in this section. And in all cases of assessment hereafter to be made, such right of appeal to the said common council, and from the said common council to the said circuit court, shall be the only remedy for damages sustained by the proceedings or acts of the said city or its officers in the matter to which such assessment relates; and no action at law shall be maintained for injuries sustained by the proceeding or action of the said city or its officers in the matter to which any such assessment hereafter made relates, whether such action be founded on section 18 of chapter 10 of the act mentioned in the title mentioned in this act, and hereby amended, or otherwise."

Section 5 of said chapter 129 provides that in case the common council shall thereafter order the grade of any street to be changed, which has in fact been changed since the twentieth of February, 1852--being the date of the passage of the amended charter which contains section 18, subch. 10, above referred to,--an assessment of benefits and damages shall be made as in the other cases of grading streets, and all the provisions of law relating to assessments for grading streets shall apply to assessments for grading such street, and the benefits and damages of such grading, "and the damages, costs and charges mentioned in section 18 of chapter 10 of [3 N.W. 6] the act hereby amended, shall be included in such assessment."

Section 13, chapter 401, Laws of 1869, provides as follows: "Any person entering into any contract with the city, and who agrees to be paid from special assessments, shall have no claim upon the city in any event except from the collection of the special assessments made for the work contracted for; and no work proper to be paid for by special assessment shall be let, except to a contractor who shall so agree."

It will be seen that the complaint alleges that the raising of the grade of said street was claimed to be done by the common council of said city in pursuance of the laws regulating the manner of doing the same, and that the cost of filling the same in front of the plaintiff's lot was assessed against said lot on account of the benefits which would accrue to it by reason of the raising of the grade in front thereof, and that because the same was so pretended to be assessed as benefits, and because the common council had ordered the work to be done by the plaintiff, and unless done by him the city would let the work by contract, and charge the cost of doing the same to the lot, he (plaintiff) did the work.

Under the charter of 1852, above cited, this court held that an ordinary action at law might be brought by the owner of any lot in said city to recover the damages, costs and charges arising from the change of grade of the street in front thereof, after the grade had been once established. Goodrich v. The City of Milwaukee, 24 Wis. 422. In the case of Church v. The City of Milwaukee, 31 Wis. 512, the decision in the case of Goodrich v. The City of Milwaukee, supra, was affirmed, and it was further held that the provisions of the charter, as amended by chapter 401, P. & L. Laws of 1869, amended by chapter 401, P. & L. Laws of 1870, giving appeals from the assessments of damages and benefits, did not apply to cases where a street grade was changed. Justice COLE, in commenting upon this point, says: "The learned counsel for the city suggests that the rule in Goodrich v. Milwaukee proceeded upon a misconception of the policy of the charter, and ought to be changed. But we still think the decision then made was correct, for the reason stated in the opinion.

"It seems to us that the city charter, and the various acts relating thereto, provide no methods for assessment of damages arising from the alteration of the grade of a street, and that the provisions in regard to the assessment of benefits, which is made by the board of public works, have reference to an entirely different class of cases; and, if this view be correct, it follows that the plaintiff's remedy by action has not been taken away or abrogated by the provisions in the acts of 1869 and 1870, above referred to." This case, and the case of Stowell v. The City of Milwaukee, 31 Wis. 523, settled a question as to the rule of damages in such case. They hold that the city in such action may, if it can, show in mitigation of damages, or for the purposes of defeating the plaintiff's right of recovery, that the change of grade, and the costs and expenses of such change, were compensated to the plaintiff by the appreciation in the market value of the property of the plaintiff in front of which such change was made.

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