79 Wis. 97 | Wis. | 1891
The plaintiff is the owner of the west forty-four feet of lots 1 and 2, in block 2, of Chapman & Thorp’s second addition to the city of Ean Claire, which abuts to the north on Bridge street, and to the west on Second avenue, with a brick block therein, which fronts on each of Said streets. The grade of these streets had been for a long time lawfully established prior to 1880, and during said year was again established at the same height, and said building was constructed with reference thereto; In 1886 the same grade was lawfully re-established.
On the 6th day of March, 1889, the city, by an ordinance of the common council, introduced for the first time on that day, which was approved by the mayor on the next day, and published on the 9th day of April thereafter, attempted to establish the grade of all streets throughout the city about four feet and seven inches above the grade theretofore existing and established. On the 13th day of June, 1889, by an ordinance introduced on that day, the former ordinance was. amended by changing the figures so as to
During the summer and fall of 1889 the city, by its officers, agents, and employees, and under the direction of the street surveyor, filled up the said streets adjoining said premises five feet and nine inehes above the old grade established in 1886, the effect of which was to make the floor of said building about five feet below thé level of said streets, and cause the plaintiff to raise said building, and fill up the lot, so as to conform them to said grade, and to greatly damage said property. The said work was not done under any contract with the city or common council; was not ordered to be done by an affirmative vote of two-thirds of the members of the council; was not directed to be done by any valid order of the council; and it was never determined what portion of the cost or expense of said grading should be charged to said premises, and no portion thereof has been so charged thereto. There was no estimate of the expense of such grading, or the amount thereof to be charged to each or any lot or parcel of land adjoining said streets, or of the number of cubic yards to be filled in-front of each or any lot, and no such estimates were ever made or filed with the city clerk. All these things are required to be done when any part of the expenses of any work is chargeable to the adjacent lots; and they were not done; and the ordinance must be referred to a committee, and lay over fourteen days before its passage. These are the defects complained of as the grounds of the city’s liability to the plaintiff. The plaintiff has been damaged by such grading in the sum of $1,500, and the claim therefor was duly filed with the city clerk for the action of the common council, and was by them disallowed. The plaintiff appealed from such disallowance to the circuit court, ahd by
The demurrer was properly overruled. The complaint states a case of unquestionable liability of the city. The ordinance by which this grading was ordered and done is void for want of compliance with the city charter. In Hall v. Chippewa Falls, 47 Wis. 267, similar defective proceedings under a charter substantially like that of the city of Eau Claire were held void.
The casé hinges upon the question whether the expenses of grading the streets of said city are chargeable to and payable wholly or in part by the lots fronting on such streets. If they are, the proceedings are fatally defective in the particulars above pointed out in the complaint. Of this there can be no question. The provisions of the charter on this subject appear to be very plain. Sec. 10, ch. 6, of the charter (ch. 16, P. & L. Laws of 1872), provides that “ the cost and expenses of surveying streets, alleys, sewers, and gutters, and of estimating work thereon in the execution of any public improvement, shall be chargeable to and papable by the city. The costs and expenses of opening, grading, graveling, planking, paving, or repairing of streets and alleys shall be chargeable to, and payable wholly or in pa,rt by, the lots or la/nd fronting on such street or alley, so that each lot or parcel of land shall pay for work between the front of each lot or parcel of land and the center of such street or alley such portion thereof as the common council shall determine.” This is as plain as language can make it. No proper steps were taken to make the expenses of this grading chargeable to the lots wholly or in part. In such a case everything which is stated above as having been omitted is required to be done to make the grading lawful. But the learned counsel of the appellant contends that
It seems that the charter of the city was revised and consolidated by chapter 181, Laws of 1889, and that the said amendment of the ordinance by which one foot and two inches were added to the height of the grade was passed after that act took effect. It is immaterial, except as to the necessity of doing one of the things required by the old charter which may have been left out; but all of the material provisions are in both alike. But the amendment was not a new ordinance. It was a slight amendment in figures of the old one. The amendment was as void as the ordinance. Neither the original ordinance nor the amendment complies with the provisions of the charter. It is needless to cite other cases in this court or elsewhere. Hall v. Chippewa Falls, supra, rules this case in all essential particulars. The ordinance is void, and the grading was without authority, and unlawful, and, it having been done by the city, the city is liable to the plaintiff for such damages as he has suffered which were caused by if. Meinzer v. Racine, 70 Wis. 561; Addy v. Janesville, 70 Wis. 401; Gilman v. Milwaukee, 61 Wis. 588; and other cases cited in the respondent’s brief.
By the Court.—The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.