31 Wis. 523 | Wis. | 1872
Many of the questions discussed in this case by the counsel for the city were involved in the case of Church v. The City of Milwaukee (ante, p. 512); and as we have expressed our views upon them in that case, it is unnecessary to further consider them here. This was an action brought for damages to property resulting from a change of grade and lowering the streets in front of and adjoining the plaintiff’s premises. The jury returned a verdict for the defendant, which was set aside by the court below as being against the weight of evidence; and the appeal is from the order granting a new trial.
It seems to us that the verdict was clearly against the weight of evidence. As we understand the testimony, it shows that the grade of Eirst Avenue at its intersection with Virginia Street, and also the grade of Virginia Street at its intersection with Eirst Avenue, had been established prior to the grade of 1866, and that the property had been improved with reference to the established grades. Whether a general system of grades had been established or not, we deem immaterial. The common council might establish the grade of the streets in detail, and if the grade should be subsequently changed to the injury of a lot owner, the party had his remedy under the provisions of the charter. Goodrich v. The City of Milwaukee, 24 Wis., 422.
Some criticism is made by the counsel on both sides upon the charge of the county court in respect to the measure of damages. The court charged, in substance, that the plaintiff was entitled to so much as it would cost him to put the premises in the same relative position to the street after the cutting that they were before; but if the premises were benefited or damaged by the cutting, in the one case the city was to have the advantage of the increased value, and in the other case the plaintiff was to be compensated for the lessened value, in addition to the cost of lowering the premises to accommodate them to the condition of the altered grade. The court likewise told the jury that the cost of grading the streets and sidewalks in front of the premises was a proper item of damages which should be allowed the plaintiff. The counsel for the plaintiff objects to that portion of this charge which allows the general benefits conferred upon the plaintiff’s premises in common with the other property affected by the grade to be offset against the direct damages. But as we have said in the Church case, this was correct. The plaintiff cannot complain if he is indemnified against all loss resulting from the change of grade ; and if his property is appreciated in its market value by the alteration, to that extent he is not damnified but benefited. The action is given by the charter, and it appears to us that it is a sufficiently liberal interpretation of the provision to hold that it allows general benefits to be set off against the damages which the owner is entitled to recover. The rule in the case of taking property for the use of a railroad corporation does not, therefore, apply.
But the counsel for the city .insists that the charge was erroneous in that it allowed the plaintiff to recover the cost of grading the streets and sidewalks in front of the premises as an item of damages. The charter imposes the burden of grading
It appears that the plaintiff had not adjusted his premises to the changed condition of the street, but the court directed the • jury that he was entitled to recover as much as it would cost him to put them in the same relative position to the street after the cutting as they were before. It follows from what has been said that there was no error in this portion of the charge, for the reason that if the lowering of the house and lot became necessary, the city was liable for the actual expense of putting the property in statu quo.
By the Court.— The order of the county court granting a new trial is affirmed.