Walish v. City of Milwaukee

• Decision Date: 12 January 1897
• Citation: 95 Wis. 16,69 N.W. 818
• Parties: WALISH v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

95 Wis. 16

69 N.W. 818

WALISH

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Jan. 12, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Joseph Walish against the city of Milwaukee. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Lenicheck & Lenicheck, for appellant.

C. H. Hamilton and Howard Van Wyck, for respondent.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to the plaintiff's complaint, alleging, in effect: That the plaintiff has been the owner of the lot described ever since 1876. That the lot is on the corner of North Water and Pearson streets, and lies on the north side of Pearson street, and on the west side of North Water street, and is 50 feet front on North Water street, and extends west about 270 feet on Pearson street, to the established dock line of the Milwaukee river. That the lot is bounded on the west by the river. That, since 1876, the plaintiff has resided thereon with his family as a homestead. That, February 13, 1888, the defendant, by ordinance, permanently established the grade of North Water and Pearson streets in front of the premises of the plaintiff, and fixed and permanently established the same as follows: At the point of intersection of Van Buren street, 36.5 feet, assuming as a base the Milwaukee river as it was in March, 1836. That Van Buren, Pearson, and North Water streets join together in front of the plaintiff's premises. That, August 8, 1892, the defendant, by ordinance, duly ordained that the city, in pursuance to chapter 411, Laws 1891, issued bonds for the construction of a viaduct across the river from the intersection of Van Buren street with Brady street to the intersection of Holton street with Reservoir avenue. That, March 20, 1893, the defendant, by ordinance, ordained that the grade or elevation of the viaduct in front of the plaintiff's premises should be permanently fixed and established, so as to be 18 feet higher than the grade established by the ordinance of February 13, 1888. That the defendant erected the viaduct in conformity to the grade last mentioned, and the same is now completed in accordance therewith, and in accordance with the specifications and plans in possession of the defendant. That the viaduct is built of iron, and commences at Brady and Van Buren streets, and passes through Van Buren street into North Water and Pearson streets, and thence, through Pearson street, west and across the Milwaukee river. That the same is supported by heavy columns, set into the street below, and above the surface, and also set into the river. That the columns and viaduct are carried a great distance above the plaintiff's lot, and immediately south of his premises. That Pearson and North Water streets are public highways, used as such for 40 years. That the river is navigable. That the erection and maintenance of the viaduct has caused a great and material injury to the premises of the plaintiff, in the several particulars mentioned therein. That the defendant has unlawfully appropriated and taken the streets and river abutting the plaintiff's lot, of which he is the owner in fee, for the construction, use, and maintenance of the viaduct. That the defendant has refused to allow the plaintiff any damages for his said injuries. Wherefore he demands judgment for $25,000 damages, and costs.

It is nowhere alleged, nor is it claimed, that at any time prior to the re-establishment of the grade,...