City of Milwaukee v. Taylor

282 N.W. 448, 229 Wis. 328, 1938 Wisc. LEXIS 293
CourtWisconsin Supreme Court
DecidedNovember 9, 1938
StatusPublished
Cited by28 cases

This text of 282 N.W. 448 (City of Milwaukee v. Taylor) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Milwaukee v. Taylor, 282 N.W. 448, 229 Wis. 328, 1938 Wisc. LEXIS 293 (Wis. 1938).

Opinion

Rosenberry, C. J.

By paragraph 1 of the complaint in City of Milwaukee v. Ticonic Investment Company it is alleged that plaintiff has decided that it is necessary to take by eminent domain under ch. 275, Laws of 1931, the following-described property to complete the widening of East and West Kilbourn avenue between North Ninth street and North Prospect avenue and including a part of Juneau park by widening West Kilbourn avenue between North Sixth street and North Ninth street and East Kilbourn avenue between North Broadway and North Prospect avenue and including a part of Juneau park in the Third and Fourth wards of the city of Milwaukee, to wit: (Legal description of the property.)

Paragraphs 2 and 3 relate to the taking of certain excess areas under the same chapter, the property to be taken being [331]*331particularly described in the paragraphs. It is alleged that the aforesaid property is required for the purposes of said corporation, and that it is the intention of said corporation in good faith to use said property as therein stated.

Paragraphs 4, 5, and 5a are allegations relating to the identity of the defendants, owners of-property and persons having an interest in the property above described, including appellant.

Paragraph 6 relates to certain tax liens for city taxes for 1937.

Paragraph 7 relates to city tax liens on certain property for taxes sold and the interest thereon.

Paragraphs 8 and 9 relate to certain tax liens owned by the county of Milwaukee for taxes sold and interest thereon.

Paragraphs 10, 11, 12, 13, 14, 15, and 15a, which was inserted by amendment, relate to certain property already acquired by the city, which property it is alleged was necessary fully to complete the plan for the widening of East and West Kilbourn avenue, and it is alleged that no special benefits to the property situated within the district have heretofore been assessed against any property benefited, and it is proposed to include in the assessment of benefits a part of the cost of said property already acquired exclusive of the cost of the bridge. (For the purposes of this case it is not necessary to state the facts in relation to such property with full particularity. They are fully set out in the complaint.)

It is alleged:

“That thus far no benefits have been assessed against the property benefited by the widening heretofore made, or by said bridge heretofore constructed although special benefits were created by such widening and bridge and it was the desire and intention of the plaintiff to assess special benefits for such widening upon the completion of the widening of said street in the future beyond to the west of North Sixth street and to the east of North Broadway; that such special benefits are to be assessed under said plan.”

[332]*332Paragraph 15a is as follows:

“That on April 5, 1932, at the spring election in 1932 the electors of the city of Milwaukee, being a city of the first class, adopted the provisions of chapter 275, Laws of Wisconsin, 1931, by a majority vote of the electors voting thereon, 102,566 voting for adoption and 49,518 voting against adoption.
“That prior to April 5, 1932, and subsequent to- January 1, 1926, East and West Kilbourn avenue was widened between North Sixth street and North Broadway as in paragraph 15 hereof is alleged. That such widening was made pursuant to ordinance No. 120 adopted October 16, 1924, and pursuant to ordinance No. 234 adopted January 16, 1928, in which ordinances provisions were made for the assessment of benefits arising from the improvement or improvements therein provided for. That the land required for the widening so made was thereafter acquired pursuant to and following the adoption of resolutions file No. 31,964 adopted on March 29, 1926, and June 21, 1926. That thereafter, on October 22, 1928, the common council adopted a resolution adopting a plan for the widening project and instructed the commissioner of public works to' proceed with the assessment procedure. That no' assessments were made, levied or collected, although it was and is the desire and intention of the plaintiff to assess special benefits for such widening.
“That the cost of the property acquired and used in such widening so made was taken out of what is now known as the Kilbourn avenue widening fund. That said fund consists and consisted of proceeds from the sale of certain bonds dated July 1, 1920, and July 1, 1922. That principal and interest due on said bonds have been paid or will be paid out of the principal on the funded debt fund and out of the interest on the funded debt fund, the proceeds of which are derived from separate tax levies therefor included in the annual city tax levy. That the moneys to be collected by the assessments to be made for the widening of East and West Kilbourn avenue heretofore made and to be made pursuant to the proposed plan will be credited to said Kilbourn avenue widening fund.”

[333]*333The answer admits that the plan referred to in the complaint includes property previously acquired and used in the widening of East and West Kilbourn avenue between North Sixth street and North Broadway, but denies that the widening of Kilbourn avenue from North Sixth street to North Broadway—

“was done as a part of a larger plan of widening Kilbourn avenue between North Ninth street and North Prospect avenue and Juneau park;”

alleges that the widening of Kilbourn avenue between North Sixth street and North Broadway was done as a separate project and was paid for as such separate project; admits that previous widening together with bridge across the Milwaukee river is included in the present plan; denies that no special benefits have heretofore been assessed against any of the property benefited; denies that no benefits have been assessed against property by the widening previously made, and denies, on information and belief, that it was the desire and intention of plaintiff to assess special benefits for such widening upon the completion of said widening in the future beyond, to the west, of North Sixth street and to the east of North Broadway; admits that it is the intention to assess special benefits for' such previous widening under the present plan.

The answer sets out many other facts which it is not necessary to state with particularity in order to dispose of the issues raised on this appeal. Where necessary, reference will be made specifically to such allegations.

'The plaintiff demurred to the answer. 'The trial court held upon the demurrer to the answer that the issues raised thereby were identical with those raised by the demurrer to the complaint and sustained the demurrer to the answer on the same grounds on which it overruled the demurrer to the complaint. In order to understand the issues presented it is [334]*334necessary to give a short history of the project under consideration.

On April 6, 1920, the plaintiff city passed an ordinance adopting a plan for what was known afterward as a civic center.

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Bluebook (online)
282 N.W. 448, 229 Wis. 328, 1938 Wisc. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-milwaukee-v-taylor-wis-1938.