Colclough v. City of Milwaukee
65 N.W. 1039
Wis.
1896
Check Treatment
PiNNBY, J.

It was held in Harrison v. Milwaukee Co. 51 Wis. 611, 662, to be the settled law in this state that in the absence of any law giving the owners of real estate adjoining a public street or highway a right to recover damages of the city, village, town, or county in which the same is situated, on account of the change of the grade of such street or highway, no damages can be recovered on account of such change, unless the premises of the adjoining or abutting owner have been injured through the negligence of the municipality or its agents in making such change, and that such change of grade is not, in any case, the taking of private property for public use. The ground of complaint in that case was that the filling and trestle work being built would render the highway inaccessible from the plaintiff’s lands, and an injunction to prevent the execution of the work was refused. Similar questions have been frequently before this court, and the law has uniformly been held as stated. Watkins v. Milwaukee, 55 Wis. 340; Buchner v. C., M. & N. W. *186R. Co. 60 Wis. 271; Smith v. Eau Claire, 78 Wis. 457; Drummond v. Eau Claire, 85 Wis. 562; Alexander v. Milwaukee, 16 Wis. 248; Dore v. Milwaukee, 42 Wis. 108.’ This view is sustained by tbe great weight of authority. The principle involved was exhaustively considered in Radcliff’s Ex’rs v. Brooklyn, 4 N. Y. 195; Skinner v. Hartford B. Co. 29 Conn. 536; Hill v. Boston, 122 Mass. 344, 348; Slatten v. D. M. V. R. Co. 29 Iowa, 149; Uline v. N. Y. C. & H. R. R. Co. 101 N. Y. 99; Rauenstein, v. N. Y., L. & W. R. Co. 136 N. Y. 528; Transportation Co. v. Chicago, 99 U. S. 635. In some of the states a different rule pre'vails. Cohen v. Cleveland, 43 Ohio St. 190.

The viaduct proper is not to extend along the plaintiff’s two blocks, and it does not come any nearer to them than the south side of St. Paul avenue. It is the approach to the viaduct of which the plaintiff complains, passing, as it does, between them on Sixteenth street, and occupying the elitire street for that distance, the grade of which will be elevated, for a distance of 248 feet, about forty feet above the original grade of the street,'thereby cutting off access from his property to the street, and interfering with his right to light and air, though for the remaining eighty feet there is no material interference with his rights in these respects. The contention for the defendant is that there has been no additional taking of the plaintiff’s property, and that the blocks in question have not been subjected to any new use or servitude, and that, in the absence of an express statute allowing it, no damages can be awarded to the plaintiff for the injury of which he complains. It is impossible, we think, to maintain that the construction of this approach to the viaduct is not really a mere change of the grade of the street for the corresponding distance, and of which it takes the place. It is in the nature of a bridge which is an extension of a highway or street, and the street beneath is practically discontinued. The case of Harrison v. Milwaukee Co. 51 Wis. *187645, is conclusive on this point; and to the same effect is Willis v. Winona, 60 N. W. Rep. 814.

The plaintiff contends, however, that ch.' 122, Laws of 1891, operates, in the present instance, to authorize a new taking, and imposes an additional use or servitude on his property, for which he is entitled to compensation. • This act does not authorize the taking and condemnation of any lands not within the strip seventy feet wide, and which begins about seventy feet south of the plaintiff’s property, and runs thence south to a designated point in the southern part of the city; and the provisions of sec. 2 áre limited in their application in like manner. The provision of sec. 6 that “ the said viaduct and approaches thereto shall forever remain under the absolute control and management of the city ” declares, also, that “ no exclusive rights or franchises for purposes of horse-railway communication, the lighting of streets, highways or the like, or any other exclusive franchises, privileges or immunities shall be granted ovér the same or any part thereof, by said city, to any person or corporation Avhatever.” The absolute control and management by the city thus provided for is evidently for the protection of the structure, and for police and other public purposes consistent with the use of the viaduct and approaches for public travel; and it cannot, in view of the latter provision of the section, be said that it gives the city any control over the viaduct and approaches which it would not have over any public street in the city.

The provisions of ch. 255, Laws of 1889 (S. & E. Ann. Stats, sec. 1296a), as construed by this court, do not apply to the case. In Smith v. Eau Claire, 78 Wis. 462, which was an action for change of grade of a street by filling it up above the former grade and above the level of the lots of the plaintiff, ch. 255, Laws of 1889, was relied on, in addition to a provision of the former charter of the city allowing damages in such cases which, it was claimed, had not *188been repealed by the law of 1889. It is there said that “ it is sufficient to say of it that it imposes liability for consequential damages only upon municipalities, companies, or corporations who close up, use, or obstruct highways so as to materially interfere with their usefulness, or to the injury or damage of property abutting thereon on either side. The lawful change of the grade of a street is not a closing up or use or obstruction of the street, within the meaning of this statute. Manifestly, it was not intended to reach a case like this. Had it been so intended, it is reasonable to believe that very different and more specific language would have been employed to express such intention.”

For these reasons we hold that the plaintiff is not entitled to the remedy he has invoked, and that his complaint does not state facts sufficient to constitute a cause of action.

By the Oourt.— The order of the superior court is reversed, and the cause is remanded with directions to dismiss the plaintiff’s complaint.