118 Wis. 254 | Wis. | 1903
The point is made that the report of the hoard of public works offered in evidence showed, by the recitals therein, that the requirements of the charter were followed as to determining both the damages and the benefits to plaintiff’s property by the grading of the street, and an assessment only of the excess of benefits over damages against such property; and that there was no evidence to the contrary, hence, within the rule of Hennessy v. Douglas Co. 99 Wis. 129, 74 N. W. 983, respondent failed to prove the cause of action alleged. Such rule goes no further than that the report of the assessment board, made in due form, prima facie establishes all the facts requisite to sustain the validity of their work, but that evidence aliunde, showing that the conclusion of the board could not reasonably have been arrived at by the exercise of judgment, is sufficient to overcome such proof and call for a decision that the assessment is void in the absence of proof, independent of the report, to the contrary.
Giving full effect to that rule, as we must, it does not help appellant, because we are unable to agree that there was no evidence produced upon the trial to impeach the report of the board. The evidence shows, without dispute, that the cut in frolit of respondent’s property varied from eight to twenty-six feet. That physical situation, of itself, shows that the assessment of benefits at a uniform rate of $10 per front foot must have been made regardless of the charter provision that the effect of the grading as to each lot or parcel of land must be considered and determined as a separate matter. In other words, that the uniform assessment per front foot was wholly arbitrary and without authority of law. It was so held in Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103. Again, there was indisputable evidence produced upon the trial, independent of the physical situation itself, that all the lots were seriously damaged by the grading. There was evi-
There was a house on one of the lots, which, the evidence shows, would have been left by the grading in a dangerous situation had it not been removed. Complaint is made because the court permitted evidence of the cost in that regard, and of building a retaining wall, and some other matters to secure the house in its new location. That complaint is based on two grounds: First, because there was no evidence pf necessity for the removal of the house; and second, because it introduced into the case an erroneous rule of damages. We are unable to see any merit in the first proposition, since we find ample evidence in the record tending to show that the cutting down of the street in front of the house gave respondent good reason to believe, as the fact was, that the house, if not removed, might be damaged and the injury be chargeable to his own negligence in not exercising proper care to prevent the cutting down of the street, causing him unnecessary loss. On the second proposition we are unable to discover that appellant was prejudiced, though the correct rule of damages was, perhaps, to some extent invaded. True, the general damage to respondent was the difference between the value of the property before the street was cut down, and the value thereafter, and in determining the same in the regular way damages to the house would be deemed to be included in the damages to the lot. However, it satisfactorily appears that the removal of the structure, charging appellant the items of expense which the court submitted to the jury as legitimate elements of damage, tended rather to diminish the amount of respondent’s recovery than to increase it. The claim that the evidence as to the'in jury to the lots did not disassociate the diminished value of the land from that of the house, from
Some complaints are made of the judge’s charge, based, however, on errors which we have already discussed unfavorably to appellant. • The errors assigned as to the charge must fall with the others.
By the Court. — The judgment is affirmed.
