55 Wis. 369 | Wis. | 1882
The action is essentially one to recover of the city of Milwaukee the expense of grading the alley in front of lot eight, together with the expenditures incident to the plaintiff’s efforts to enforce payment of the amount of his grading certificate. The charter of the city then in force made the cost of grading the alley chargeable to the lots benefited thereby, and provided that “ in no event where work is ordered to be done at the expense of any lot or parcel of land, shall either the city or any ward be held responsible for the payment thereof.” Laws of 1852, ch. 56, subch. 7, sec. 10, p. 94. This provision was so modified by Laws of 1869, ch. 401, as amended by Laws of 1870, ch. 401, that in a certain contingency (not material here) a portion of the cost might become chargeable to the proper ward fund. This immunity of the city from liability for the grading of the alley existed when the contract set out in the answer was made. Indeed, the provisions of the charter in that behalf were substantially inserted in the contract itself.
The case made in the complaint is that the plaintiff entered into the contract, did the grading, and took the tax deed on the faith of the city records, which showed a legal assessment of benefits against lot eight; whereas, in truth and in fact, the assessment was .invalid because it was made upon an estimate of the cost of grading the alley, and not upon an estimate of the actual benefit accruing to the lot in consequence of the improvement.
We think there is no sufficient averment in the complaint of fraud by any city officer in respect to the entries in the city records. It was said in Johnson v. Milwaukee, 40 Wis., 315, in respect to an assessment based, like this, on cost instead of benefits, that the board of public works presumably acted upon a misconstruction of the statute. There is no
In Allen v. Janesville, 35 Wis., 403, the common council had unlimited power to improve the streets, and the city charter contained no provision that in no event should the cost of such an improvement be chargeable to the city. The city ordered such an improvement, but failed to take proper proceedings to charge the cost thereof upon lots. The efiy
We conclude that the complaint fails to state a cause of action, -and that the demurrer thereto was properly sustained on that ground. It becomes unnecessary to pass upon the other ground of demurrer assigned, to wit, the statute of limitations.
By the Gourt.— Order affirmed.