Spence v. City of Milwaukee

143 Wis. 47 | Wis. | 1910

Lead Opinion

The following opinion was filed April 26, 1910:

Kerwitt, J.

The findings set out in the statement of facts show full compliance with the provisions of the city charter, and if they are supported by the evidence the judgment below must be sustained. The findings are attacked by counsel for appellants on the ground that it appears conclusively that the assessment was made upon the so-called front-foot rule, and that there had been no proper view of the premises. The following authorities are relied upon in support of these propositions: Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103; Friedrich v. Milwaukee, 118 Wis. 254, 95 N. W. 126; Haubner v. Milwaukee, 124 Wis. 153, 101 N. W. 930, 102 N. W. 578; Loewenbach v. Milwaukee, 139 Wis. 49, 119 N. W. 888. In all of the foregoing cases it was conclusively established by the findings and the evidence that the provisions of the charter had not been complied with. In Kersten v. Milwaukee, supra, the court found that the assessment was arbitrary and fraudulent for the reason that the board did not consider the benefits to the owners of the adjoining property nor the injury which might result to the owners by reason of the work, but made an arbitrary assessment, based solely upon the cost of the work in front of or abutting upon the lots, respectively, at the uniform rate of $1 per front foot. To the same effect is Friedrich v. Milwaukee, supra. In Haubner v. Milwaukee, supra, the court held:

“An assessment by the board of public works of the benefits and damages to abutting lots by reason of the grading of a street in Milwaukee was made without separate consideration of the several lots, although they were very differently affected by the improvement; it was not made at the time of viewing the premises, but at a different time and in the office of the board; and it assessed a uniform sum per front foot as benefits along the whole street, and awarded no damages whatever for injuries, and that under the city charter such assessment was void.”

In Loewenbach v. Milwaukee, supra, the court held that in making an assessment of benefits and damages arising from a street improvement the board of public works should ascertain what the benefits and damages amount to on each parcel of land, instead of assuming that the benefits are equal to the cost of doing the work.

In the instant case, as appears from the statement of facts, ■the court below found that all the proceedings were regular and the provisions of the charter complied with. Counsel for appellants refers us to some evidence which, standing alone, would seem to support his contention that the front-foot rule was observed, and also that a proper view of the premises was not made, but an examination of all the evidence fully convinces us that the findings on these facts, as well as all others, are well supported by the evidence. It may also be observed, in passing, that the court found upon sufficient evidence that the appellants had notice of the proceedings resulting in the assessments, that the property was ■enhanced in value far more than the value of the improvements, and the abutters severally benefited to the amount of the benefits severally assessed, and that the appellants are •estopped from maintaining the action. It seems, therefore, upon the established facts and under the decisions of this court, regardless of other questions before discussed, that the appellants are estopped from maintaining this action. State ex rel. Schintgen v. Mayor, etc. 101 Wis. 208, 77 N. W. 167; Beaser v. Barter A. P. Co. 120 Wis. 599, 98 N. W. 525; Lawton v. Racine, 131 Wis. 593, 119 N. W. 331.

It follows that the judgment of the court below must be affirmed.

By the Gourt. — The judgment is affirmed.

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Rehearing

The appellants moved for a rehearing. The following -opinion was filed May 24, 1910:

Pee Cueiam.

A motion in this ease was made for a rehearing and to change the mandate respecting costs. It is urged that a rehearing should be granted on the ground that the findings are not supported by the evidence. Upon further examination of the record we think the contention is without merit. As to changing the mandate we find no warrant for so doing in the record. Conceding, without deciding, that the judgment was entered more than sixty days, after the findings were filed, we discover no ground for changing the mandate. It does not appear from the record that, the alleged error was ever brought to the attention of the court below. If the clerk improperly inserted costs in the-judgment the matter should have been brought to the attention of the court below and a ruling obtained before review can be had here. Blomberg v. Stewart, 67 Wis. 455, 30 N. W. 617.

The motion is denied with $25 costs.