McCullough v. Village of Campbellsport

123 Wis. 334 | Wis. | 1904

SiebecKee, J.

The village board was enjoined from prosecuting to completion the contemplated improvement by grading Main street to the established grade and building a sidewalk in front of plaintiff’s premises. It is found that the village board, on October 6, 1902, at a stated meeting, by resolution adopted a street and sidewalk grade for Main street,, and directed its street superintendent to build a sidewalk on the established-grade. This sidewalk would pass in front of plaintiff’s store building, and necessitate a lowering of the-street surface to the depth of nearly eleven inches below the surface of the present walk. The village was enjoined from making this improvement upon the ground that the village board did not take the requisite steps under the statute to give its proceedings validity under the powers granted to village boards by sec. 905, ch. 40, Stats. 1898. It appears that the board undertook to establish a street and sidewalk grade on some of its streets, including Main street bordering on plaint-_ iff’s premises, and to build a sidewalk on the established grade in front of his property. In ordering the improvement no attempt was made to charge the cost to the owners of the abutting property, as prescribed by sec. 905. We must therefore look elsewhere in the statutes for power authorizing the action taken by them. Subd. 11, sec. 893, grants village boards power “to lay out, open, . . . and widen . . ' . streets . . . (and) . . . alleys ... to grade, improve and repair or discontinue the same or any part thereof; to make ... or otherwise improve, keep in repair, . . . or discontinue sidewalks and crosswalks.” The performance of these duties clearly requires expenditures to defray the expense incident to the exercise of these municipal functions. The requisite authority for this purpose is granted them by secs. 911, 912, and 914d, which empowers them to-raise the necessary means for the improvement of the streets and sidewalks by taxation. A comparison of these sections with sec. 905 clearly shows that the expenses incident to improving the village streets generally for public use and travel are to be defrayed by the inhabitants by general taxation, while the cost of the improvement by paving, macadamizing, or otherwise of a particular street or part of a street, and building gutters and sidewalks in connection therewith, as contemplated by see. 905, is chargeable upon the abutting property by special assessments in the manner and upon the conditions prescribed by this section. The steps taken by the village board clearly indicate they were acting under the authority granted them for making general street improvements, under which the village board may establish street and sidewalk grades and build sidewalks, to. be paid for out of the general street improvement fund. It is n.ot suggested that the proceeding of the board was irregular or void under this authority, and we find nothing in the record which impeaches the validity of their action.

It was considered by the court that, if the village made the improvement' as directed, plaintiff’s premises would thereby be materially damaged in value, access-thereto from the street made difficult and inconvenient, and its use materially impaired, causing him irreparable injury. The court found all that had been done and what would be required to complete the improvement was confined within the limits of the street. Under these circumstances plaintiff has no cause of action for the impairment of and interference with his facilities for ingress and egress. It has been repeatedly asserted in the decisions of this court that, in the absence of any law giving the owners of real estate adjoining a public street or highway a right to recover damages from the municipality on account of the change of grade, no damages can be recovered on account of such change of grade unless the premises of the adjoining or abutting owner have been injured through the negligence of tbe municipality or its agents in making sucb a change, and that such a change of grade is not the taking of private property for public use. Wallich v. Manitowoc, 57 Wis. 9, 14 N. W. 812; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039. If, however, the municipality or its agents, in making such improvements, are guilty of an actual physical invasion of the adjoining premises, either by occupying a part of them in making an embankment to raise the street, or by taking a part in grading, or by causing it to subside and fall by excavations, then they are not within the protection of the principle of the foregoing cases, and liability attaches. Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448; Damkoehler v. Milwaukee, 124 Wis. —, 101 N. W. 706. Under the facts of this case the village board acted regularly within their authority, and plaintiffs rights were not violated, and no cause for restraining the village and its agents from completing the improvement as contemplated by the resolution of the board is shown.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment dismissing the complaint.