114 Wis. 304 | Wis. | 1902
Tbis is an appeal from an order overruling a demurrer to tbe complaint in an action commenced November 9, 1900, to recover damages for lowering Hadley street in front of tbe plaintiff’s premises between First street and Island avenue, in tbe Thirteenth ward of tbe city of Milwaukee. Tbe facts- alleged in the complaint are very
The defendant contends, and the plaintiff concedes, that the cause of action alleged or sought to be alleged is not in equity to enforce a reassessment under the statutes (secs. 1210d-1210f, Stats. 1898). Sanderson v. Herman, 108 Wis. 662, 84 N. W. 890, 85 N. W. 141. Both parties agree (to what is very obvious) that this is a straight action at law to recover damages for cutting down the street in front of the plaintiff’s premises without any authority of law. • In such a case this court has held that “for air unlawful change in the grade of a street a city is liable to the owner of abutting property for all damage directly and prosimately caused thereby, without reference to any resulting benefit.” Drummond v. Eau Claire, 85 Wis. 556, 55 N. W. 1028. In that case it was said that “this court has, in effect, frequently held that where a change of grade in a street is made under authority of law, and with due care, the municipality is not liable for consequential injury to abutting lots, unless made SO' by statute or the constitution.” 85 Wis. 562. The adjudications of this court upon both questions are' there reviewed and classified. See, also, Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039; Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818.
The question recurs whether the cutting down of Hadley street in front of the plaintiff’s premises was, as alleged in the complaint, wrongful, unlawful, and without authority of law. The action and proceedings of the board of public works and common council in the matter of such improvement are the same as in Pittelkow v. Milwaukee, 94 Wis. 651, 69 N. W. 803, and Pittelkow v. Herman, 94 Wis. 666, 69 N. W. 805. In tlie first of these cases it was held, as it must be here, that
—“that the board of public works, before ordering the work to be done in front of the plaintiff’s premises, did not view the same, or consider the amount proposed to be made chargeable against the same, and the benefits which would accrue to the plaintiff in consequence of the alleged improvement, and did not assess against the premises the amount of benefits which they would derive therefrom when completed in the manner contemplated, and did not take into consideration the injury to, and total destruction of, the plaintiff’s premises.” Pittelkow v. Milwaukee, 94 Wis. 656, 69 N. W. 805.
Assuming such allegations to be true, as we were bound to on such demurrer, we held that the complaint in that case stated a good cause of action. While the complaint in the case at bar alleges that the law made it the duty of the board of public works, before ordering such improvement, to view the premises, as stated in the charter (sec. 7, subeh. VII), yet it nowhere alleges, as in the other case, that the board did not view the premises; and tjie report of the “commissioners of public works” states that “the board of public works viewed the said premises on June 13, 1894.” But in the complaint in this case it is alleged that the pretended assessment was arbitrary and fraudulent and void, for the reason that the board of public works did not consider, with reference to the lots, the injury which might result to the owners by reason of said work, but made an arbitrary assessment of benefits, based solely upon the cost of the work in front or abutting upon the lots, respectively, at the uniform rate of $10 a foot, except upon lot 6, block 4, and lot 6, block 8, and for the
—“before ordering', any work to be done by the owners of lots or lands fronting on the same, said board shall view the premises, and consider the amount proposed to be made chargeable against said several lots or pieces of land, and the benefits which, in their opinion, will actually accrue to the owner of the same in consequence of such improvement, and shall assess against the several lots or pieces of land, or parts •of lots or pieces of land, which they may deem benefited by the proposed improvement, the amount of such benefit which ■those lots or jaeces of land will severally, in the opinion of said board, derive from such improvement when completed in the manner - contemplated in the estimate of the cost of •such work, made as provided by section six of this chapter, taking into consideration in each case any injury which in the opinion of the board, may result to each lot or piece of land from such improvement; and in case the benefits, in their •opinion, amount to less than the cost of the improvement, the balance shall be paid out of the ward fund of the ward or wards in which such improvement is made; and said board ■shall endorse their decision and assessment in every case on the estimate of the cost of such improvement filed in their office.” Sec. 7, subch. VII.
These provisions of the charter, with sec. 8, required the board to consider and pass “upon, not only the question of
By the Court. — Tbe order of tbe circuit court is affirmed.
