Tyson v. City of Milwaukee

• Decision Date: 27 May 1880
• Citation: 50 Wis. 78,5 N.W. 914
• Parties: TYSON v. THE CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

50 Wis. 78

5 N.W. 914

TYSON

v.THE CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed May 27, 1880.

Appeal from circuit court, Sheboygan county.

Jenkins, Elliott & Winkler, for respondent.

D. H. Johnson, for appellant.

TAYLOR, J.

The respondent brought his action against the city of Milwaukee to recover damages he had sustained by reason of the change of grade of the streets in front of his lots in said city.

The complaint states two causes of action: one for a change of grade of the streets adjoining the plaintiff's lots, extending to the river, and which had been used as dock property before the change of grade; and one for the change of grade of the streets adjoining plaintiff's lots, across the street, in the rear of the dock property. The claim for damages to the last mentioned lots is, in the complaint and case, called the plaintiff's second cause of action. The action was tried by a jury, and a special verdict was rendered, upon which the plaintiff had judgment for the sum of $15,868.23.

It will only be necessary to examine the following findings in order to understand the objections made by the appellant to the judgment rendered thereon:

Fifth. “Is it necessary, for the use of the premises in the second cause of action, in the complaint described, that they should be filled up to the changed grade?” Answer. “No.”

Sixth. “What will it cost to fill up to the new grade the premises, in the second cause of action, described at 35 cents a cubic yard.” Ans. “$1,864.80.”

Thirtieth. “Was the market value of the property south of South Water street increased or diminished by the change of grade, and to what amount was it so increased or diminished?” Ans. “Not increased or diminished.”

The thirtieth question refers to the premises mentioned in the fifth and sixth questions.

Fifteenth. “Is it necessary, for the use of the premises described in the first cause of action in the complaint, that they should be filled up to the changed grade of South Water street, as established by the ordinance of 1872?” Ans. “No.”

“ Twenty-third. Were said dock premises, remaining at the same elevation as before, lessened in their market value by reason of the change of grade of South Water street in 1872?” Ans. “Yes.”

Twenty-fourth. “To what amount were they so lessened in their market value?” Ans. “$1,700, total damage.”

Twenty-fifth. “Did the plaintiff purchase the property described in the complaint after the ordinance of July, 1864, mentioned in the complaint. Ans. “Yes.”

Twenty-sixth. “Was the grade ordained by the ordinance of 1864 six feet higher than that of 1853?” Ans. “Yes.”

Twenty-seventh. “What is the maximum difference between the grade as ordained by the ordinance of 1864 and that of 1872?” Ans. “One and a-half feet.”

Twenty-eighth. “Did the plaintiff pay the assessments for the street work mentioned in the complaint?” Ans. “No.”

Twenty-ninth. “Was the property described in the complaint sold upon foreclosure of a mortgage in 1875, the assessments for street work being yet unpaid?” Ans. “Yes.”

Thirty-first. “As to the property south of South Water street, has it been improved for any purpose otherwise than by filling it to the grade of 1853?” Ans. “No.”

Thirty-second. “Was the ordinance of 1864 ever enforced on the street raised to the grade thereby established prior to 1872?” Ans. “No.”

Upon motion of the plaintiff the court rendered judgment in his favor, amongst other things, for the sum of $1,864.80, the amount which the jury found it would cost to fill up to the new grade the premises described in the plaintiff's second cause of action, in answer to the sixth interrogatory; and also for the sum of $3,203.48 for interest on the sum of $7,500, the amount which the jury found was the total damage to the dock property by reason of the change of grade, in answer to the twenty-fourth question. The interest was calculated on said sum of $7,500 from January 1, 1873, to the time of the entry of the judgment, and included in the judgment.

The appellant alleges as error-- First, that the court improperly allowed the plaintiff the two sums of money above mentioned as a part of his damages; second, in refusing to take a special verdict as to the cost of raising the grade one and one-half feet, the difference between the grade of 1864 and that of 1872; third, in giving judgment for the cost of the street work assessed upon the property in question and interest thereon; fourth, in giving judgment for the cost of grading the premises described in the plaintiff's second cause of action, for the reason that said premises had never been improved otherwise than by filling them to the grade of 1853, and therefore the necessity for such grading could not have been caused by a change of street grade; fifth, in allowing damages for an assumed change of grade of the extension of Lake street, from South Water street to the river, because the grade of said section of street was never changed at all.

We think the exception taken to the allowance of the sum of $1,864.80 for filling the plaintiff's lots, described in his second cause of action, is well taken. The findings of the jury expressly negative the idea that there was any necessity for such filling in order to render the lots useful, and the answer to the thirtieth question, as above quoted, expressly negatives the idea that the lots were damaged at all by the raising of the grade of the street in front of these lots. The plaintiff was allowed the sum of $1,792.78 for the cost and expenses of grading, paving, guttering, and making sidewalks on the streets abutting these premises, and interest thereon from the twenty-sixth of January, 1874, being the sum which had been charged to said lots for doing said work. The evidence showed that the plaintiff had not done any of the work himself, but that it had been done at the expense of the ward and charged as a tax upon the lots; and it also showed that the streets had been raised up to the grade established in 1872, and the pavements, gutters and sidewalks made upon the raised grade. The allowance of this last-named sum to the plaintiff was a full compensation for all charges made against his property for the work of putting the streets and sidewalks on the changed grade. If, therefore, the plaintiff claimed any further damages on account of the change of grade, it was incumbent on him to show how he had suffered such damage; but the jury expressly find, by their answer to the thirtieth question, that he did not suffer any further damage, because they say his lots were worth just as many dollars after the grade was raised in front of his lots as they were before, and, by their answer to the fifth question, they find that it is not necessary for the use of these lots that they should be filled.

The statute which gives the plaintiff his right of action, and upon which he must rely to recover any damage at all, simply provides that, “when the established grade 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.” All the costs and charges spoken of in said act were covered by the sum allowed the plaintiff for grading, paving, guttering, and making the sidewalks upon the changed grade, and the jury found that when such work was completed plaintiff's lots were just as valuable as they were before the grade had been changed. Under these findings it would seem to follow as a most logical conclusion that when the plaintiff was refunded the cost of such work, with interest, he would be fully compensated for all the damage done to his lots by the altered grade. Why, then, should the city be called upon to pay the plaintiff the further sum of $1,864.80 as damages? Certainly, accordingto the finding of the jury, he has not suffered that damage, and the allowance of it is, apparently, simply absurd. The filling has not been done by the plaintiff, and the title to the premises has been transferred to other parties.

If the plaintiff gets this sum from the city it will not be expended by him in filling the lots. If the jury have not made a mistake in their findings of fact, we must presume that the premises were sold for just as much as they would have sold for if the grade had not been changed, less the sum charged for the work above mentioned, and for which the plaintiff has already been allowed full compensation. If, therefore, the plaintiff recovers the $1,864.80 allowed him by the court in this case, he certainly does not recover it because he has suffered that amount of damage, in addition to the other sums allowed, but upon some supposed rule of assessing damages in actions of this kind which entitles the plaintiff to recover the costs of the work of such filling, whether it be necessary or not, whether such filling would add one dollar to the value of the lots or not, and, in fact, even though such filling would lessen the value of the lots for any and all purposes. It is gravely asserted by the learned counsel for the respondent, and qualifiedly admitted by the counsel for the appellant, that this absurd rule of damages has been established by this court in actions of this nature, and, on the part of the respondent, it is insisted that its justice or propriety cannot, therefore, be inquired into.

The rule is said to have been established by this court in the cases of Church v. City of Milwaukee, 31 Wis. 512, and Stowell v. Same,Id. 523. After a careful reading of these cases I am unable to find any justification for this assertion in either of these cases. The only questions determined in these cases were-- First, that the words “costs” and “charges,” in the act of 1852, included the cost and expenses of filling or excavating the street to the altered grade, the cost of paving, guttering, and making the sidewalks upon such new grade; second, that upon...