Schmidt v. City of Milwaukee

• Decision Date: 23 April 1912
• Citation: 135 N.W. 883,149 Wis. 367
• Parties: SCHMIDT v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

149 Wis. 367

135 N.W. 883

SCHMIDT

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

April 23, 1912.

Appeals from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Proceeding by Peter Schmidt against the City of Milwaukee to review the assessment by the board of public works of damages to plaintiff's property by the change of grade of North and Oakland avenues in that city. From the judgment, the parties bring cross-appeals. Affirmed.

Prior to April 15, 1902, the plaintiff owned a number of city lots in the north half of block 220, in the Eighteenth ward of Milwaukee, upon which he operated a plant for cutting, sawing, and dressing stone, with the necessary buildings and appliances. Bounding this block on the west was Bartlett street, on the north North avenue, and on the east Oakland avenue, all graded and improved streets. Through the middle of the block, running north and south and parallel with Oakland avenue and with Bartlett street, was a public alley 14 feet wide. On the west side of this alley, and between it and Bartlett street, running east and west, and beginning at the North avenue line and lying parallel therewith, and numbering from there south, were lots 39 to 31, inclusive, owned and occupied by the plaintiff. Considering platting alone, only lot 39 abutted on North avenue; but all these lots were used and occupied together as part of the stone-dressing plant. On the east of this alley, between it and Oakland avenue, running east and west, and beginning at the north line of the block, were lots 1 to 6, inclusive. Crossing North avenue diagonally at grade, running southeast, and cutting off the greater parts of lots 1 and 2, about half of lot 3 and part of lots 4, 5, and 6 was the right of way of the Chicago & Northwestern Railway, which, proceeding southeasterly, crossed Oakland avenue diagonally and at grade. In the middle of this right of way were double tracks of the railroad. The plaintiff owned those fractions of lots 1, 2, 3, 4, and 5 between the alley mentioned and the railway right of way, and also lot 6, only the southerly 10 feet of which touched the boundary of Oakland avenue. Between the north part of lot 6 and all of the other lots mentioned and the boundary of Oakland avenue extended the right of way of the said railroad. A side track connecting with the westerly track of the railroad company near the west boundary of Oakland avenue swung over the right of way, and in upon plaintiff's premises. Only a very small part of the west end of lot 1 belonged to the plaintiff and abutted on North avenue; and there was evidence from which the jury might have found that this was taken away by the excavation for the depression of the railway tracks and the building of the necessary retaining wall, or for the construction of plaintiff's new side track.

On April 15, 1902, there was enacted by the city authorities an ordinance requiring the depression of the roadbed and tracks of this railroad, and for bridges over said roadbed and tracks where they intersected the streets. The first section of the ordinance required the said railroad company to depress the plane of its roadbed and tracks in the manner, to the depth, and upon the conditions specified in said ordinance. Detailed directions followed, including the manner of construction of bridges over all depressed roadbed and tracks on North avenue, Oakland avenue, and elsewhere. The plans of these bridges were to be approved by the board of public works of the city; but the railroad was required to build them. It was provided by section 5 that nothing in the ordinance should be construed to require the railroad company to assume or pay any damages to adjacent property or business, caused by the depression of its tracks or change of grade of any street, etc., and that, in consideration of the railroad company's construction of the bridges at the street crossings, and of its acceptance of the ordinance and agreement to do and perform all things required to be done and performed by it under the ordinance, all damages, if any there were, should be adjusted and paid by the city, and the city should intervene in suits brought for the recovery of such damages and relieve the railroad company from defendingthe same, and assume and pay all judgments recovered therein. The ordinance contains other provisions, not relevant here. The effect of this ordinance was, by means of such depression and bridges, to create overhead crossings, instead of the former grade crossings, and, apparently in order to lighten the burden of the railroad company, the depth of depression was so fixed that the level of the bridge, viaduct, or overhead crossing at the places in question was to be three feet above the former street grade.

On September 12, 1902, the city, by ordinance, changed the grade of North avenue for about a block each way from each end of the viaduct, for the purpose of making an approach to the viaduct, and in like manner changed the grade at the Oakland avenue viaduct. This change of grade was 3 feet at the contact of the approach with the viaduct on North avenue, and diminishing to zero as it receded from the bridge, and 3 1/2 feet at the same contact on Oakland avenue, and in like manner diminishing. The actual street surface, however, in each instance was above the grade fixed by the old ordinance, so that the actual raise under the ordinance of September 12, 1902, was not equal to the difference between the former established grade and the later established grade. After the railroad company had depressed its tracks and built its bridges or viaducts, and on or about April 18, 1904, the common council of the city, upon report of the board of public works, adopted a resolution to grade and curb the streets and plank the sidewalks on North avenue from Bartlett street to Kenilworth place, which is about the east boundary of Oakland avenue. This was said to be “for the reason that, on account of the depression of the railway tracks in the immediate vicinity, the said street has become inadequate, inconvenient and unsafe for the public use thereof for the passage of foot passengers and vehicles, and for the drainage of water therefrom.” This grading and curbing of the street and planking of the sidewalks were to be done at the expense of the city, and without special assessment on the abutting lots, so that the only thing the abutting lot owners are legally concerned with is the damages arising from change of grade. A like resolution related to the approach to the Oakland avenue viaduct, or overhead crossing.

An assessment of benefits and damages was ordered, and such assessment was made and confirmed; there being two separate proceedings, one for Oakland avenue and one for North avenue--each also including other streets. No part of the cost of paving streets or restoring streets or sidewalks was to be charged to the abutting owners, and this assessment of benefits and damages appears to have been entirely formal, apparently in endeavor to comply literally with the charter of the city, which requires the fixing of damages by the board of public works for change of grade to be made at the time of assessing benefits. The damages for change of grade to lots 1, 2, 3, 4, and 5 were not assessed at all, presumably because these lots did not front on the street on which the improvement was made. Lot 6 was indicated as belonging partly to the railroad company and partly to the plaintiff; and it was found that there were no benefits and no damages to this lot. This assessment related solely to the change of grade on Oakland avenue. No damages were awarded on account of the change of grade on North avenue to lot 1. Lots 31 to 39, inclusive, were assessed for the change of grade on North avenue; and it was found that there were no benefits and $100 damages to be paid to the owner.

From each of these assessments of damages, the plaintiff took a separate appeal to the circuit court of Milwaukee county--in the North avenue case, on the ground that the amount of $100 adjudged and allowed to him as owner of said lots for damages, costs, and charges arising from the alteration of the grade of the street is insufficient, inadequate, and unjust, and all of said proceedings are illegal and void. From the Oakland avenue assessment, a like appeal was taken, which stated the grounds of the appeal as follows: “The failure and refusal to adjudge and allow him, as such owner of said lots, by said corrected assessment, confirmed as aforesaid, any sum of money whatever for damages, costs, and charges arising from the alteration of the grade of the street, and for the deprivation of the right to use and the use of the spur track, extending northwesterly over lot 6 from the Chicago & Northwestern Railroad Company's tracks and right of way, is unjust, in that there should have been adjudged and allowed to him, as such owner of said lots, and particularly of the south 22 feet of lot 6, in said block, a sum of money for damages, costs, and charges arising from the alteration of the grade of said street and said deprivation; and that all of said proceedings are illegal and void.” After these appeals were lodged in the circuit court, the latter, by order, consolidated the appeals.

The jury found a special verdict as follows:

“(1) Were lots 1, 2, 3, 4, 5, and 6, in block 220, considered as one parcel, affected or injured in consequence of the alteration of the grade of Oakland avenue opposite lot 6, excluding from your consideration the loss of side track and any other injury resulting from the depression of the tracks of the railroad? Answer: No.”

“(3) Were the plaintiff's premises, including lots 1 to 6 and 31 to 39, in block 220, considered as one parcel, and for the purpose for which they were used at the time the grade was changed, affected or injured by the change of grade of Oakland avenue, excludingfrom your consideration the loss of side track and any other...