State ex rel. Hennessey v. City of Milwaukee

• Decision Date: 09 February 1943
• Citation: 6 N.W.2d 718,241 Wis. 548
• Parties: STATE ex rel. HENNESSEY v. CITY OF MILWAUKEE et al.
• Court: Wisconsin Supreme Court

241 Wis. 548

6 N.W.2d 718

STATE ex rel. HENNESSEY

v.CITY OF MILWAUKEE et al.

Supreme Court of Wisconsin.

Dec. 8, 1942.

Rehearing Denied Feb. 9, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Reversed.

Certiorari brought on relation of Vincent D. Hennessey against the city of Milwaukee and others to vacate an assessment of real estate. From a judgment quashing the writ and dismissing the action, the relator appeals. The material facts are stated in the opinion.

Vincent D. Hennessey, of Milwaukee, pro se and Vincent D. Hennessey, Jr., of Milwaukee, for appellant.

Walter J. Mattison, City Atty., and John J. Dolan and John A. Decker, Asst. City Attys., all of Milwaukee, for respondents.

FOWLER, Justice.

A writ of certiorari was issued out of the circuit court for Milwaukee county to review an assessment of real estate confirmed by the local board of review. The court granted a motion of the defendants to quash the writ and judgment was entered dismissing the action.

The statute governing the assessment of real estate, sec. 70.32(1), Stats., and in Revised Statutes of 1878, sec. 1052, reads as follows: “70.32. (1) Real property shall be valued by the assessor from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. * * *”

The statute governing the action of the board of review reads: “70.47. (1) * * * The Board shall, under their official oaths, carefully review and examine * * * all valuations of real and personal property, * * * and if it appear that any property has been valued by the assessor too high or too low, they shall increase or lessen the same to the true valuation according to the rules for valuing property prescribed in this chapter.”

The parties do not differ as to the rule of law applicable under these statutes. They agree that real estate must be assessed at its fair market value, and that the market value of real estate is what property will sell for upon negotiations resulting in sale between an owner willing but not obliged to sell and a willing buyer not obliged to buy. Estate of Ryerson, 239 Wis. 120, 125, 300 N.W. 782. They also agree that the assessor's valuation must be taken as presumptively correct in proceedings attacking the assessment, but that this presumption must give way to undisputed competent evidence establishing a lower value. At least if they do not so agree they should, for it is the established law. See Estate of Ryerson, supra, 239 Wis. pages 138, 139, 300 N.W. 782;State ex rel. Collins v. Brown, 225 Wis. 593, 594, 275 N.W. 455. The appellant claims that application of these rules requires reversal of the court's judgment.

The instant property is a lot with a residence thereon situated in a high-class residential section of the city of Milwaukee. The 1941 assessment is involved. It was then assessed at $16,500, $6,500 for the land and $10,000 for the improvements. The relator purchased it in September, 1940, for $12,500. He has since made some improvements, which he concedes have increased the sale value by $500 or $600. He contends that these facts supplemented with facts as to the sale price of similar property in the near vicinity and other material facts presented before the board of review, all undisputed, required a reduction of the assessment to $12,500 plus such amount as the sale value was increased by the improvements.

It is said in the Ryerson case, supra, 239 Wis. page 137, 300 N.W. page 789, that “it is our observation in many of the cases that have come before us that trial courts are inclined to give altogether too little weight to the price actually paid for property upon a fair open market.” This is as applicable to assessors and board of review as to courts. It is true a sale of the instant property does not establish market value unless the evidence of it “is accompanied by a showing that the sale was made under such normal and usual circumstances as to lead to the conclusion that the price paid was that which ordinarily could be obtained at private sale.” State ex rel. Collins v. Brown, supra, 225 Wis. page 595, 275 N.W. page 456. It follows as corollary to the above that if the evidence of the instant sale price is so accompanied, then that sale price must be taken as the “fair market value.”

The evidence clearly shows that the sale of 1940, which we shall refer to as “the instant” sale was consummated upon negotiations between a seller and a buyer under conditions as above stated. It was in every respect an ordinary sale. There was evidence of sales of five similar properties in the neighborhood at like relative prices in 1940. The parties to these sales were “willing” and “under no obligation to sell” or “buy.” At the time of his purchase the relator “shopped” and had other similar properties offered him at similar relative prices. A like property, which he preferred to the instant property he offered $12,000 for and...