Schildknecht v. City of Milwaukee

• Decision Date: 14 March 1944
• Citation: 245 Wis. 33,13 N.W.2d 577
• Parties: SCHILDKNECHT et al. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

245 Wis. 33

13 N.W.2d 577

SCHILDKNECHT et al.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

March 14, 1944.

Appeal from a judgment of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Affirmed.

Action commenced January 25, 1941, by Ottillie Schildknecht, Amanda Schildknecht, Ella (Schildknecht) Moser, and Elsie K. Schildknecht, against the City of Milwaukee, to declare null and void special benefits assessed against plaintiffs' property and restrain the sale of said land for non-payment of said special assessment pending determination of the action. Defendant demurred to the original complaint, which was sustained with leave to amend. An amended complaint was filed, to which a demurrer was sustained, and judgment entered on April 26, 1943, dismissing plaintiffs' complaint. Plaintiffs appeal from this judgment. The facts are stated in the opinion.

Lyman G. Wheeler, of Milwaukee, for appellants.

Walter J. Mattison, City Atty., and Ronold A. Drechsler, Asst. City Atty., both of Milwaukee, for respondent.

BARLOW, Justice.

The complaint alleges that the plaintiffs are heirs at law of Annie Schildknecht, deceased, and the owners in fee of the south one hundred feet of Lot 9, Block 53, in the plat of the east half of the northwest quarter of Section 29 in Town 7, North in Range 22 East, in the county of Milwaukee, state of Wisconsin; that on and after October 16, 1924, the common council of the city of Milwaukee, by resolutions and ordinances, planned and arranged to widen Cedar Street ((ow West Kilbourn Avenue) and Biddle Street (now East kilbourn Avenue) in the city of Milwaukee, extending eastward from North Sixth Street to the Milwaukee River, by acquiring fifty feet in width of property on the south side of Cedar Street from North Sixth Street to West Water Street, and other property from thence to the Milwaukee River, and fifty feet in width of property on the north side of Biddle Street from the Milwaukee River eastward to Broadway, and as part of said plan to build a bridge across the Milwaukee River from Cedar Street to Biddle Street.

Further allegations are: That condemnation proceedings were instituted by said city to take by eminent domain the north fifty feet of Lot 9, Block 53, at that time owned by Annie Schildknecht, for said widening purposes; that commissioners were appointed to award damages, and the city appealed from the award; that the issues on appeal were tried in circuit court for Milwaukee county before a jury, and a special verdict was returned on the 18th day of February, 1929; that the jury determined the fair market value of the north fifty feet of said lot 9, together with buildings on said lot, to be the sum of $30,000, and assessed no damages or benefits to the remaining one hundred feet of said lot by reason of the widening of Cedar Street; that judgment was entered accordingly, with the following provision as to benefits:

‘It Is Adjudged that no benefits resulted to the remaining portions of said lot by reason of the taking of said north fifty feet of said lot for said purposes.’

The judgment was paid and satisfied on the record.

In 1937 the common council adopted an improvement project for the widening of additional streets, including the Cedar and Biddle Streets widening which was completed and opened for public travel in 1929, and created an assessment district, assessing benefits for the entire project under the provisions of ch. 275, Laws of 1931. An assessment of benefits was made against plaintiffs' land in the sum of $5,400, which included a portion of the cost of Cedar and Biddle Streets improvement. (See City of Milwaukee v. Taylor, 1938, 229 Wis. 328, 282 N.W. 448, for history of this assessment and area included in the project.) No personal service was made on the plaintiffs or Annie Schildknecht at the time of making this assessment.

Plaintiffs admit in their brief that they are liable for any benefits which can be established by reason of the improvement outside of the Cedar and Biddle Streets widening, and state they are ready and willing to pay said assessment when it is properly determined.

Defendant demurred to the complaint on two grounds: (1) That the complaint does not state a cause of action, and (2) That the court has no jurisdiction of the subject of the action.

Plaintiffs contend that the assessment is illegal for two reasons: (1) That the question of benefits was determined in the circuit court action under date of February 18, 1929, as to the Cedar and Biddle Streets area, which prohibits the city from making a further assessment, and (2) That no personal service was made on the plaintiffs or Annie Schildknecht as required by sec. 9, ch. 275, Laws of 1931.

The right to include Cedar and Biddle Streets in the new project in 1937 and include the cost of this improvement as part of the benefits to be assessed against the assessment district created was decided in City of Milwaukee v. Taylor, supra. There is no allegation in the complaint that special benefits were assessed at the time of the Cedar and Biddle Streets improvement, unless the inference may be drawn from the verdict of the jury and judgment in the condemnation action in the circuit court for Milwaukee county, which are set forth in full in the complaint. We cannot see where this so alleges. It is true that there is a variation between the question submitted to the jury and the judgment which was entered, the jury answering question No. 4 of the special verdict as follows:

‘Question No. 4. At what sum do you assess the benefits, if any, to the south 100 feet of said Lot 9, which are derived from the widening of Cedar Street? Answer: Nothing.’

But the judgment provides as to the question of benefits:

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