31 Wis. 27 | Wis. | 1872
The questions presented in this case depend wholly upon the proper construction and effect of certain provisions in the charter of the city of Milwaukee, regulating the manner of estimating the damages of the owner, and appraising the value of land taken in the laying out and opening of streets, and also the manner of making assessments to defray the cost and expense of grading, graveling, planking or paving streets in that city; which provisions in the charter have been adopted and made applicable to the work of laying out, establishing and constructing a system of canals, water channels or slips in the valley of the Menomonee river, in the city of Milwaukee, as provided for by chapter 91, private and local laws of 1869, and the amendments thereto, found in chapter 401 of the same laws, entitled “an act establishing a board
The provisions of the charter regulating the manner of appraising value and estimating damages where land is taken for streets, which appraisement and estimate is made by a jury of twelve men, are contained in sections 11 and 12 of chapter VI. of the charter (being subchapter VI. of chapter 56, Laws of 1852), and read as follows:
“ Sec. 11. The said jurors, within the time limited, shall view and examine the premises proposed to be taken, and all such other premises as will, in their 'judgment, be injured or benefited thereby. After hearing such testimony as may be offered by any party interested, and which shall be reduced to writing by one of said jurors, they shall proceed to make their assessment, and determine and appraise, to the owner or owners, the value of the real estate so proposed to be taken, and the injury arising to them respectively, in consequence of the taking thereof, which shall be awarded to such owners respectively*36 as damages, after making due allowance therefrom for any benefit which such owners may respectively derive from such improvement. * * *
“ Sec. 12. If the damage to any person be greater than the benefits received, or if the benefit be greater than the damages, in either case the jurors shall strike a balance, and carry the difference forward to a column, so that the assessment will show what amount is to be received or paid by such owner or owners respectively, and the difference only shall, in any case, be collectible of them, or payable to them. ”
Section 18 of the same chapter declares, that the damages assessed shall be paid, or tendered, or deposited, as therein required, within six months from the confirmation of the assessment and the report of the jury ; and if they are not so paid, tendered or deposited, all the proceedings in any such case shall be void.
The provisions of the charter declaring how the expense of tire grading, graveling, etc., of streets shall be paid, are found in section 5 of chapter VIL, and are in these words: “The cost and expense of opening, grading, graveling, planking or paving streets and alleys to the centre thereof, shall be chargeable to and payable by the lots fronting on such street or alley. ” The charter contains some further provisions pertaining to particular cases, not required to be noticed here. Sec. 21 of the act establishing a board of public works, chapter 401, private and local laws of 1869, above referred to, reads as follows : “ The grading, graveling, planking, macadamizing or paving to the centre of any street or alley, and the grading, graveling, planking or paving of any sidewalks, and the paving of any gutter, shall be chargeable to or payable by the lots fronting or abutting upon such street, alley, sidewalk or gutter, not exceeding the amount to which such grading, graveling, macadamizing, planking or paving shall be adjudged by said board to benefit such lots. ” Section 24 provides how the damages and benefits shall be estimated and determined.
This appeal originated in a proceeding for the taking of a portion of the plaintiff’s land for the purpose of widening the navigable channel of the Menomonee river, and is of the same kind as where land is taken, or proposed to be, for the purpose of a street. The plaintiff took his appeal from the original assessment of damages and benefits, to the circuit court, and the question which arose in that court, and is to be decided by this, is, whether, on such assessment, the plaintiff is entitled to have taken into consideration, as a proper element of damages in his favor, the costs and expenses to which he will be subjected in dredging and removing the soil of that part of the land taken, so as to actually widen the navigable channel of the river as contemplated by the board of public works, and give to his remaining land the same water front and access to the river which now exists. It is urged that by taking the strip of land nearest the river, the plaintiff is deprived of his water front and access to the river, which is necessarily a great injury, and that when damages and benefits come to be assessed for dredging and widening, the pretext will be to charge him with large benefits for restoring such water front or access. The claim is, that he gets nothing for having his land separated or cut off from navigable water, for which it now is, or heretofore has been, chiefly valuable; and that when such advantage comes to be restored, by the dredging and widening, he will
If the board of public works proposed to take the land for any other purpose than for widening the river and enlarging its capacity for navigation, as, for example, for a common road or street along the bank of the river, which would permanently deprive the plaintiff of access to its navigable waters, and the profitable use of his remaining land as he now uses or may use the land taken bordering on the river, then, undoubtedly, such deprivation would constitute a most important item of damage to be estimated in the plaintiff’s favor. But as the proposed public use here, and character of the improvement, are of an entirely different kind, and one which does not contemplate a destruction of the plaintiff’s water front, but a mere change in the line or location of it, and which is not intended to deprive him or his remaining land of any of the benefits of full and free access to navigable water, as such access now exists, it is not easy to see how this temporary separation of his remaining land from navigable water, which must necessarily .take place in the process of laying out and preparing for the improvement, should constitute any element of injury, or circumstance to be considered in estimating the damages sustained by reason of the taking and appropriation. In such case, the only legitimate and proper subjects of consideration, according to the rules prescribed by the charter and by law, would seem to be those submitted by the court to the jury on the trial below. The plaintiff owned the land upon one side of the river, of certain navigable capacity, but less, it is believed, than the exigencies of trade and commerce demand at that place. It is proposed by the board of public works, acting under authority of law, to
The principles underlying taxation of this kind- — the proposition that it is taxation, or an exercise of the taxing power, where benefits are deducted, allowed or charged in proceedings like the present, and the conclusion that there exists no valid legal or constitutional objection, are most fully and ably examined and sustained in the opinion of the supreme court of Connecticut, by Hinman, J., in Nichols v. Bridgeport, 23 Conn., 189. The charter of the city of Bridgeport contained a similar provision, where land was taken for the purposes of streets, or highways; and the question arose upon its validity with re spect to the constitutional provision that the property of no person shall be taken for public use without just compensation therefor. Two propositions were discussed and decided by the court: first, whether the compensation could be paid by benefits, or the benefits offset to the value of the land taken, so that the owner would receive no money consideration or other payment; and second, whether he could be charged for benefits over and above the value of the land taken, and taxed or required by law to pay for the same. Both propositions were
And again, in the discussion of the second proposition, as to the right to charge and compel payment by the owner as for benefits received beyond the value of his land taken, the following language occurs: “It is said that it takes the property of individuals, that is, their money, for public use, without any compensation therefor. This is not so, either in theory or in fact. If the assessment has been truly and justly made, the fact must be regularly ascertained to be, what the theory of the
These quotations, liberally made, clearly show the nature of these special assessments or charges and deductions for benefits received, and correctly state the principles upon which they are sustained. And to the same effect, see Washington Avenue, 69 Pa. St., 358 to 361.
Now, where the statutes provide, as in this case, distinct proceedings for laying out streets and acquiring the right of way, and for separate assessments for benefits to make compensation, and then again, other distinct process or proceedings and assessment of benefits in order to improve the streets when laid out, it would seem to be an entire departure from and overthrow of the system, to hold that the assessment made or to be made against the owner in the latter proceeding as for a benefit, might be taken into account and credited or allowed in his favor as a damage in the former. The assessment in the latter as for benefits beyond any damages sustained, is a tax or public burden lawfully imposed on the individual. It is so in theory as well as in fact in both proceedings. It is difficult to perceive how a party can suffer that as a damage which is lawfully imposed upon him or his property as a tax or public burden, in the sense that he may recover it back from or have it’ allowed to him by the public in the same or any other proceeding. The benefits charged, or to be charged, to the plaintiff for dredging and actually widening the river, or so as to cause the same to be done, are but a tax. They are, therefore, in legal contemplation, no damage. If, instead of special assessments for benefits, in order to widen and improve the navigation of the river, the system was a general tax upon the city or all the property in it, the plaintiff would of course have no such cause of damage or injury as is now complained of, unless, indeed, it should be that his • proportion of the general tax, as near as
The direction of the circuit court, that no execution issue upon the judgment rendered in favor of the plaintiff until the further order of the court, is of doubtful propriety. We do not say that the court had no power to make the order under the circumstances, nor do we direct the order to be vacated. It may be safely left to that court to vacate the order, which will undoubtedly be done, on application of the plaintiff, unless the amount of the judgment for damages and costs, with interest, is sooner paid to the plaintiff by the city.
By the Court — -Judgment affirmed.
A motion for a rehearing was denied at the January term, 1872.