40 Wis. 315 | Wis. | 1876
Weeks v. Milwaukee, 10 Wis., 242, was decided as long ago as 1860; has been repeatedly followed and approved (Bond v. Kenosha, 17 Wis., 284; Mitchell v. Milwaukee, 18 id., 92; May v. Holdridge, 23 id., 93; Dean v.
We are unable to perceive any difference in principle between the application of the rule to highways by land and to highways by water. It is, of course, true, as was said on the argument, that the latter are things of common right, open to the indiscriminate use of all; but that is equally true of the former. It is also true that the fee of highways by land goes generally with the fee. of the property abutting upon them, which is not generally so in the case of highways by water. But the improvement of highways by land, with which the abutting property is chargeable,.is not of the fee, but of the public use, and might well be detrimental to the enjoyment of the fee, ceasing the public use.
The rule appears to be applied to the improvement of public waters in Soens v. Racine, 10 Wis., 271, and Bond v. Kenosha, supra. In Hale v. Kenosha, supra, the court says: “Assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal improvements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure.” And in Holton v. Milwaukee, 31 Wis., 27, the application of the rule to highways by water is very distinctly asserted. That was a case of land taken for the purpose of extending or widening a highway by water, and involved the assessment of damages and benefits by reason of
Tbe question whether tbe actual cost of improvement of highways by land or by water may b.e absolutely chargeable to abutting property beyond or irrespective of tbe actual benefit to the property, is not in this case. Eor tbe charter of tbe city of Milwaukee, as it stood wben this case arose, and which' must govern it, is clear and emphatic that tbe assessment shall not exeed tbe actual benefit to tbe property. Tbe provisions
Sec. 21 provides generally for the charge of street improvements on abutting lots. Sec. 22 makes similar provision charging the construction and repair of docks, and dredging rivers for fifty feet in width, upon abutting lots. Sec. 23 provides for an estimate of the cost of the improvement in either case, by the board of public works; and the subsequent process by which that board may acquire authority' to order the
These provisions appear to be equitable, and go far to avoid tbe objections to tbe justice of tbe system recognized in Weeks v. Milwaukee, and which made tbe court so reluctant to uphold it. For, as tbe charter of tbe city then stood, while the benefits could not exceed tbe' actual cost, tbe assessment could not exceed tbe actual benefits: benefits positively and specially found to accrue to each lot assessed. Tbe charter did not provide that abutting property should bear tbe whole cost of improvements; but that it should bear the cost to the extent only to which it was actually benefited; leaving the deficiency, when there should be one, to be paid out of the appropriate public fund arising from general and equal taxation. The theory that the cost of improvement, and the benefit to property, must always and necessarily be equal, is wholly unwarranted by the provisions which we have cited. And an arbitrary assessment of actual cost as benefits, without fair estimate, upon actual view, of the actual benefit accruing to each lot, would be a fraud upon the just rule established by the sections which we have cited.
Whether, and how far, the present uses of property should be considered in assessing benefits under these provisions, might be a question of some difficulty, not necessary to determine here. We rest our decision, not upon the rule of assessment, but upon the necessity of assessment, fairly and actually made, upon actual view of the premises to be assessed, of the benefits actually accruing to the premises by the improvement. This must have rested in the first instance upon the judgment and conscience of the commissioners of public works, which we could not probably have reviewed; that would have been for the common council firstly, and for the circuit court secondly. -But we can require the apparent exercise of such judgment and conscience, in an apparently fair and just assessment, made under the conditions of the statute, by the
The document in the record, purporting to be the assessment of the hoard of public works, is open upon its face to grave suspicion that it was an evasion of the statute under which it was made. The commissioners do not certify that they have made the assessment of benefits, as required by the statute; but only that the schedule annexed sets forth the benefits. The schedule of benefits itself appears to be arbitrary throughout, and sometimes greatly unequal. Eor example: the south twenty feet of lot two, and the north twenty feet of lot three, in block three, are respectively assessed $54.72 and $35.04; lots two and three in block thirty-one, apparently contiguous and of equal frontage, are respectively assessed $182.40 and $222.24; and the north and south halves of lot five in the same block are respectively assessed $116.64 and $145.44. It would he very difficult to believe that contiguous property, used for like purposes, could be so unequally benefited by the improvement; or that the assessment proceeded upon an actual and fair estimate of actual benefits to each lot, without regard to cost except as a limit of the benefits chargeable. The whole tends to raise a strong presumption that no estimate of actual benefits was made, and that it is really an estimate founded upon cost and not upon benefits.
And this presumption is fully sustained by the evidence of one of the commissioners examined on the trial. It appears that the city engineer had made an estimate of the cost of dredging in front of each lot. To this the board of public works added twenty per cent., “ to cover the amount which the board deemed the several lots benefited in excess of the nominal estimate or cost of the work, which was a mere guess at the cost.” If the estimate, of cost were a euess, the estimate
We do not mean to be understood that, under the charter of the city as it then was and we believe'still is, the full cost of improvement cannot be assessed against property, when the benefit is equal to the cost. That may well happen. What we do mean to hold is, that it is the amount of the benefit, not exceeding the cost, and not the amount of the cost, exceeding the benefit, with which property is chargeable in these assessments.
It does not appear that the board of public works ever
Oases involving these assessments under tbe charter of tbe city have been frequently in this court; none of them, we think, involving tbe precise question here determined, or in conflict with our judgment of this case. There are certainly dicta in some of them indicating that tbe cost is tbe measure of tbe assessment; but we believe that all such dicta were before tbe statute of 1869. Be that as it may, when tbe construction of that statute is directly involved, we are quite clear that it is impossible to put any other upon its provisions.
Some objection was made to tbe right of tbe respondent to maintain this action, on tbe ground that tbe assessment is not a cloud upon bis title. ¥e are unable to agree with tbe learned counsel, and cannot think that tbe cases which be cites supports bis position. Tbe assessment has been made, tbe work has been done, and tbe city is about to issue a certificate to tbe contractor charging, tbe respondent’s lot, to go into tbe tax roll if unpaid. Whenever tbe lien might be held to attach, it appears to us that tbe facts constitute a cloud upon tbe plaintiff’s title, which a court of equity will remove, within tbe doctrine of Judd v. Fox Lake, 28 Wis., 583. No prudent purchaser would take tbe property at its full value, in view “ of tbe impending, unauthorized execution and delivery ” of tbe certificate, which would- operate as an apparent charge or encumbrance on it. Upon tbe mere assessment, as
By the Gowrt. — The judgment of the court below is affirmed.
Secs. 21 and 22 of oh. 401, P. & L. Laws of 1869, provide as follows:
“ Sec. 21. The grading, graveling, planking, macadamizing, or paving to the center of any street or alley, and the grading, graveling, planking or paving of any sidewalk, and the paving of any gutter, shall he chargeable to and 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.
“ Sec. 22. The construction and keeping in repair of the docks in front of lots or parcels of land along the banks of the rivers in stdd city, and the dredging of the same to a width not exceeding fifty feet towards the center of the river, where such rivers have been dredged, shall be chargeable to and payable by the lots or parcels of land so fronting; and said board shall have the same authority over said rivers and lots or lands fronting thereon as they have over streets and lots and lands fronting thereon, and shall be governed by the same rules as in the case of imiirovement upon streets.”
Sec. 23 of said chapter, as amended by sec. 3, ch. 401, P. & L. Laws of 1870, reads as follows:
“ Whenever the board of public works shall deem it necessary to grade or otherwise improve any street, alley, sidewalk or public ground, or to dredge or dock any of the livers, or to abate any nuisance, they shall cause to be made an estimate of the costs of such work, and shall put the same on file in their office, and such estimate shall be open to the inspection of any iiarty interested. Thereupon the said board shall make to the common council such recojnmendation in relation to the proposed work as they may deem proper; and upon the same being adopted by the common council in whole or in part, the said board may order so much of the work to be done as shall have been adopted by the common council,” etc.
Sec. 24 of said chapter, as amended by sec. 4, ch. 401, P. & L. Laws of 1870, reads as follows:
“Before ordering any such work to be done by the owners of lots or lands*323 fronting on the same, said hoard shall view the premises and consider the amount proposed to be made chargeable against such several lots or pieces of land, and the benefit which in their opinion will actually accrue to the owners of the same in consequence of such improvement; and in case the benefits in their opinion amount to less than the cost of such improvement, the balance shall be paid out of the ward funds in the ward or wards in which such improvement is made, and the board shall indorse then decision in every such case on the estimate of the cost of such improvement, and file the same in their office.”
Sec. 25 of said chapter, as amended by sec. 5, ch. 401, P. & L. Laws of 1870, reads as follows:
“Thereupon said board shall give notice for six days in the official city papers, to the owner or agent of any lot or parcel of land fronting upon any such improvement to be made, that an assessment of benefits for such improvement is ready for inspection in their office, and requiring him to do the work mentioned in such notice, within a reasonable time therein to be specified, and if such work shall not be done within such time, the said board shall contract for the doing of the same, as hereinbefore provided, and no further nolice or publication of such assessment shall be necessary. The owner of any lot or tract of land who feels himself aggrieved by the decision of the said board, as to the amounts of the benefits by them adjudged to accrue to him by reason of any improvement charged against his lot or parcel of land, may, within thirty days after the expiration of the notice of such work being ordered, by petition appeal to the common council, who shall hear and determine such appeal as they may deem just and proper. Should such appellant be dissatisfied with the decision of the common council, upon his appeal, or should such council fail to decide upon his appeal for twenty days after the petition therefor shall have been presented to them, said appellant may, within thirty days after the making of such decision, or after the expiration of said twenty days, appeal to the circuit court of Milwaukee county,” etc.