Ryan, C. J.
Weeks v. Milwaukee, 10 Wis., 242, was decided as long ago as 1860; has been repeatedly followed and approved (Bond v. Kenosha, 17 Wis., 284; Mitchell v. Milwaukee, 18 id., 92; May v. Holdridge, 23 id., 93; Dean v. [320]*320Charlton, 27 id., 522; Hale v. Kenosha, 29 id., 599; Blount v. Janesville, 31 id., 648); and the rule which it upholds enters into most, if not all, of the city charters since granted by the legislature. The rule was adopted by the court with reluctance, in submission to the language of the constitution. But, whatever we might now think of the abstract justice or policy of the rule, it is altogether too late to reconsider it.
We are unable to perceive any difference in principle between the application of the rule to highways by land and to highways by water. It is, of course, true, as was said on the argument, that the latter are things of common right, open to the indiscriminate use of all; but that is equally true of the former. It is also true that the fee of highways by land goes generally with the fee. of the property abutting upon them, which is not generally so in the case of highways by water. But the improvement of highways by land, with which the abutting property is chargeable,.is not of the fee, but of the public use, and might well be detrimental to the enjoyment of the fee, ceasing the public use.
The rule appears to be applied to the improvement of public waters in Soens v. Racine, 10 Wis., 271, and Bond v. Kenosha, supra. In Hale v. Kenosha, supra, the court says: “Assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal improvements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure.” And in Holton v. Milwaukee, 31 Wis., 27, the application of the rule to highways by water is very distinctly asserted. That was a case of land taken for the purpose of extending or widening a highway by water, and involved the assessment of damages and benefits by reason of [321]*321taking tbe land, and tbe separate assessment of benefits for tbe actual extension or widening of tbe highway. Speaking of tbe first of these assessments, DixoN, G. J., says: “ In determining tbe compensation to be made for tbe land, tbe jury are first to ascertain and fix its value, and allow tbe same; and then to estimate or assess-tbe benefits, or damages, if any, to tbe remaining land or property of tbe plaintiff, wbicb will result from tbe improvement wben made. It may be that increasing tbe .navigable capacity of tbe river, as proposed, will very greatly enhance tbe value of the adjoining property still owned by tire plaintiff.” And again, speaking of tbe second of these assessments: “ It would seem to be an entire departure from and overthrow of tbe system, to bold that tbe assessment made, or to be made, against the owner in tbe latter proceeding as for a benefit, might be taken into account and credited or allowed in bis favor as a damage in tbe former. Tbe assessment in tbe latter as for benefits beyond any damages sustained, is a tax or public burden lawfully imposed on tbe individual. It is so in theory, as well as in fact, in both proceedings. It is difficult to perceive bow a party can suffer that as a damage, wbicb is lawfully imposed upon him or bis property as a tax or public burden, in tbe sense that he may recover it back from or have it allowed to him by tbe public, in tbe same or any other proceeding. The benefits charged, or to be charged, to tbe plaintiff for dredging and actually-widening tbe river, are but a tax.” So' that tbe application of tbe rule to highways by water does not appear to b'e an open question in this court.
Tbe question whether tbe actual cost of improvement of highways by land or by water may b.e absolutely chargeable to abutting property beyond or irrespective of tbe actual benefit to the property, is not in this case. Eor tbe charter of tbe city of Milwaukee, as it stood wben this case arose, and which' must govern it, is clear and emphatic that tbe assessment shall not exeed tbe actual benefit to tbe property. Tbe provisions [322]*322of tbe charter governing this case are to be found, in ch. 401 of 1869 as amended by ch. 401 of 1870.
Sec. 21 provides generally for the charge of street improvements on abutting lots. Sec. 22 makes similar provision charging the construction and repair of docks, and dredging rivers for fifty feet in width, upon abutting lots. Sec. 23 provides for an estimate of the cost of the improvement in either case, by the board of public works; and the subsequent process by which that board may acquire authority' to order the [323]*323improvement. Sec. 24 qualifies and controls secs. 21 and 22, and provides that, before ordering any improvement in either case, the board shall view the premises, and consider the amount chargeable to abutting' lots, and the benefit to the owners in consequence of the improvement; and that, in case the benefits shall be less than the cost, the balance of cost shall be paid out of the proper public fund. This last provision clearly implies the necessity of a formal assessment of the actual benefits to each lot; for see. 25 provides for public notice of the assessment of benefits so made, and for appeals [324]*324therefrom by tbe owner of each lot to tbe common council, and from tbe common council to tbe circuit court.
These provisions appear to be equitable, and go far to avoid tbe objections to tbe justice of tbe system recognized in Weeks v. Milwaukee, and which made tbe court so reluctant to uphold it. For, as tbe charter of tbe city then stood, while the benefits could not exceed tbe' actual cost, tbe assessment could not exceed tbe actual benefits: benefits positively and specially found to accrue to each lot assessed. Tbe charter did not provide that abutting property should bear tbe whole cost of improvements; but that it should bear the cost to the extent only to which it was actually benefited; leaving the deficiency, when there should be one, to be paid out of the appropriate public fund arising from general and equal taxation. The theory that the cost of improvement, and the benefit to property, must always and necessarily be equal, is wholly unwarranted by the provisions which we have cited. And an arbitrary assessment of actual cost as benefits, without fair estimate, upon actual view, of the actual benefit accruing to each lot, would be a fraud upon the just rule established by the sections which we have cited.
Whether, and how far, the present uses of property should be considered in assessing benefits under these provisions, might be a question of some difficulty, not necessary to determine here. We rest our decision, not upon the rule of assessment, but upon the necessity of assessment, fairly and actually made, upon actual view of the premises to be assessed, of the benefits actually accruing to the premises by the improvement. This must have rested in the first instance upon the judgment and conscience of the commissioners of public works, which we could not probably have reviewed; that would have been for the common council firstly, and for the circuit court secondly.
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Ryan, C. J.
Weeks v. Milwaukee, 10 Wis., 242, was decided as long ago as 1860; has been repeatedly followed and approved (Bond v. Kenosha, 17 Wis., 284; Mitchell v. Milwaukee, 18 id., 92; May v. Holdridge, 23 id., 93; Dean v. [320]*320Charlton, 27 id., 522; Hale v. Kenosha, 29 id., 599; Blount v. Janesville, 31 id., 648); and the rule which it upholds enters into most, if not all, of the city charters since granted by the legislature. The rule was adopted by the court with reluctance, in submission to the language of the constitution. But, whatever we might now think of the abstract justice or policy of the rule, it is altogether too late to reconsider it.
We are unable to perceive any difference in principle between the application of the rule to highways by land and to highways by water. It is, of course, true, as was said on the argument, that the latter are things of common right, open to the indiscriminate use of all; but that is equally true of the former. It is also true that the fee of highways by land goes generally with the fee. of the property abutting upon them, which is not generally so in the case of highways by water. But the improvement of highways by land, with which the abutting property is chargeable,.is not of the fee, but of the public use, and might well be detrimental to the enjoyment of the fee, ceasing the public use.
The rule appears to be applied to the improvement of public waters in Soens v. Racine, 10 Wis., 271, and Bond v. Kenosha, supra. In Hale v. Kenosha, supra, the court says: “Assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal improvements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure.” And in Holton v. Milwaukee, 31 Wis., 27, the application of the rule to highways by water is very distinctly asserted. That was a case of land taken for the purpose of extending or widening a highway by water, and involved the assessment of damages and benefits by reason of [321]*321taking tbe land, and tbe separate assessment of benefits for tbe actual extension or widening of tbe highway. Speaking of tbe first of these assessments, DixoN, G. J., says: “ In determining tbe compensation to be made for tbe land, tbe jury are first to ascertain and fix its value, and allow tbe same; and then to estimate or assess-tbe benefits, or damages, if any, to tbe remaining land or property of tbe plaintiff, wbicb will result from tbe improvement wben made. It may be that increasing tbe .navigable capacity of tbe river, as proposed, will very greatly enhance tbe value of the adjoining property still owned by tire plaintiff.” And again, speaking of tbe second of these assessments: “ It would seem to be an entire departure from and overthrow of tbe system, to bold that tbe assessment made, or to be made, against the owner in tbe latter proceeding as for a benefit, might be taken into account and credited or allowed in bis favor as a damage in tbe former. Tbe assessment in tbe latter as for benefits beyond any damages sustained, is a tax or public burden lawfully imposed on tbe individual. It is so in theory, as well as in fact, in both proceedings. It is difficult to perceive bow a party can suffer that as a damage, wbicb is lawfully imposed upon him or bis property as a tax or public burden, in tbe sense that he may recover it back from or have it allowed to him by tbe public, in tbe same or any other proceeding. The benefits charged, or to be charged, to tbe plaintiff for dredging and actually-widening tbe river, are but a tax.” So' that tbe application of tbe rule to highways by water does not appear to b'e an open question in this court.
Tbe question whether tbe actual cost of improvement of highways by land or by water may b.e absolutely chargeable to abutting property beyond or irrespective of tbe actual benefit to the property, is not in this case. Eor tbe charter of tbe city of Milwaukee, as it stood wben this case arose, and which' must govern it, is clear and emphatic that tbe assessment shall not exeed tbe actual benefit to tbe property. Tbe provisions [322]*322of tbe charter governing this case are to be found, in ch. 401 of 1869 as amended by ch. 401 of 1870.
Sec. 21 provides generally for the charge of street improvements on abutting lots. Sec. 22 makes similar provision charging the construction and repair of docks, and dredging rivers for fifty feet in width, upon abutting lots. Sec. 23 provides for an estimate of the cost of the improvement in either case, by the board of public works; and the subsequent process by which that board may acquire authority' to order the [323]*323improvement. Sec. 24 qualifies and controls secs. 21 and 22, and provides that, before ordering any improvement in either case, the board shall view the premises, and consider the amount chargeable to abutting' lots, and the benefit to the owners in consequence of the improvement; and that, in case the benefits shall be less than the cost, the balance of cost shall be paid out of the proper public fund. This last provision clearly implies the necessity of a formal assessment of the actual benefits to each lot; for see. 25 provides for public notice of the assessment of benefits so made, and for appeals [324]*324therefrom by tbe owner of each lot to tbe common council, and from tbe common council to tbe circuit court.
These provisions appear to be equitable, and go far to avoid tbe objections to tbe justice of tbe system recognized in Weeks v. Milwaukee, and which made tbe court so reluctant to uphold it. For, as tbe charter of tbe city then stood, while the benefits could not exceed tbe' actual cost, tbe assessment could not exceed tbe actual benefits: benefits positively and specially found to accrue to each lot assessed. Tbe charter did not provide that abutting property should bear tbe whole cost of improvements; but that it should bear the cost to the extent only to which it was actually benefited; leaving the deficiency, when there should be one, to be paid out of the appropriate public fund arising from general and equal taxation. The theory that the cost of improvement, and the benefit to property, must always and necessarily be equal, is wholly unwarranted by the provisions which we have cited. And an arbitrary assessment of actual cost as benefits, without fair estimate, upon actual view, of the actual benefit accruing to each lot, would be a fraud upon the just rule established by the sections which we have cited.
Whether, and how far, the present uses of property should be considered in assessing benefits under these provisions, might be a question of some difficulty, not necessary to determine here. We rest our decision, not upon the rule of assessment, but upon the necessity of assessment, fairly and actually made, upon actual view of the premises to be assessed, of the benefits actually accruing to the premises by the improvement. This must have rested in the first instance upon the judgment and conscience of the commissioners of public works, which we could not probably have reviewed; that would have been for the common council firstly, and for the circuit court secondly. -But we can require the apparent exercise of such judgment and conscience, in an apparently fair and just assessment, made under the conditions of the statute, by the [325]*325board of public works, as a condition precedent to a valid charge upon the property assessed for the improvement. And where it is apparent that there was none such, it is our duty to hold invalid the attempt to charge the property liable to assessment.
The document in the record, purporting to be the assessment of the hoard of public works, is open upon its face to grave suspicion that it was an evasion of the statute under which it was made. The commissioners do not certify that they have made the assessment of benefits, as required by the statute; but only that the schedule annexed sets forth the benefits. The schedule of benefits itself appears to be arbitrary throughout, and sometimes greatly unequal. Eor example: the south twenty feet of lot two, and the north twenty feet of lot three, in block three, are respectively assessed $54.72 and $35.04; lots two and three in block thirty-one, apparently contiguous and of equal frontage, are respectively assessed $182.40 and $222.24; and the north and south halves of lot five in the same block are respectively assessed $116.64 and $145.44. It would he very difficult to believe that contiguous property, used for like purposes, could be so unequally benefited by the improvement; or that the assessment proceeded upon an actual and fair estimate of actual benefits to each lot, without regard to cost except as a limit of the benefits chargeable. The whole tends to raise a strong presumption that no estimate of actual benefits was made, and that it is really an estimate founded upon cost and not upon benefits.
And this presumption is fully sustained by the evidence of one of the commissioners examined on the trial. It appears that the city engineer had made an estimate of the cost of dredging in front of each lot. To this the board of public works added twenty per cent., “ to cover the amount which the board deemed the several lots benefited in excess of the nominal estimate or cost of the work, which was a mere guess at the cost.” If the estimate, of cost were a euess, the estimate [326]*326of benefits calculated upon it, at a uniform and arbitrary rate of increase, would appear to be one guess founded upon another. A competent engineer’s estimate of cost could not properly be called a guess; but an estimate of benefits, made simply and solely by adding a percentage to it, is little better. It sufficiently appears by the evidence of this witness, that the apparent assessment of benefits rested absolutely on the estimate of cost, and not at all upon an actual consideration or estimate of actual benefits. And so the witness testifies that the assessment of benefits was “ coincident with the theory that each piece of property, unless in some extraordinary case, shall pay the cost of the work in front of the lot.” And he adds that the estimate was made to cover cost and nothing more, to this extent, “that the board deemed the property benefited by dredging, as contemplated by the law, to the amount of the cost of the dredging at least.” The witness and his board appear not to have understood the law as we do. And it is in vain that he asserts that there was a fair assessment of actual benefits, while he gives a process of assessment inconsistent with his assertion and with the letter and spirit of the law under which the board was acting. That is. but his conclusion from the facts which he states, and is not warranted. The board of public works presumably acted upon the misconstruction of the statute which the witness repeats; and their assessment was an evasion and abuse of the just rule prescribed by it.
We do not mean to be understood that, under the charter of the city as it then was and we believe'still is, the full cost of improvement cannot be assessed against property, when the benefit is equal to the cost. That may well happen. What we do mean to hold is, that it is the amount of the benefit, not exceeding the cost, and not the amount of the cost, exceeding the benefit, with which property is chargeable in these assessments.
It does not appear that the board of public works ever [327]*327viewed tbe premises assessed, as required by tbe statute. The formal assessment does not profess that they did; and tbe evidence of tbe commissioner seems to imply that they did not. This alone might be fatal to tbe assessment. Hersey v. Supervisors, 37 Wis., 75. But we prefer to rest tbe invalidity of tbe assessment, in this case, upon tbe ground that tbe commissioners of public works based tbe assessment upon cost, instead of tbe actual benefits positively and *speeially accruing to tbe property assessed, in consequence of tbe improvement.
Oases involving these assessments under tbe charter of tbe city have been frequently in this court; none of them, we think, involving tbe precise question here determined, or in conflict with our judgment of this case. There are certainly dicta in some of them indicating that tbe cost is tbe measure of tbe assessment; but we believe that all such dicta were before tbe statute of 1869. Be that as it may, when tbe construction of that statute is directly involved, we are quite clear that it is impossible to put any other upon its provisions.
Some objection was made to tbe right of tbe respondent to maintain this action, on tbe ground that tbe assessment is not a cloud upon bis title. ¥e are unable to agree with tbe learned counsel, and cannot think that tbe cases which be cites supports bis position. Tbe assessment has been made, tbe work has been done, and tbe city is about to issue a certificate to tbe contractor charging, tbe respondent’s lot, to go into tbe tax roll if unpaid. Whenever tbe lien might be held to attach, it appears to us that tbe facts constitute a cloud upon tbe plaintiff’s title, which a court of equity will remove, within tbe doctrine of Judd v. Fox Lake, 28 Wis., 583. No prudent purchaser would take tbe property at its full value, in view “ of tbe impending, unauthorized execution and delivery ” of tbe certificate, which would- operate as an apparent charge or encumbrance on it. Upon tbe mere assessment, as [328]*328an. initial step or threat, before the work had been done and a certificate apparently become due to the contractor, equity would not interfere. But, when the work has been done under “ an apparently valid contract entered into by the officers of the corporation, but which is in reality invalid by reason of some extrinsic defect,” we do not appreciate the difference in principle between arresting the impending certificate, which is to foñnd a sale, and arresting the sale itself. The certificate charging the property is negotiable; an additional reason for arresting what might prove a vagrant charge upon the property, difficult to find'or to deal with.
By the Gowrt. — The judgment of the court below is affirmed.
Secs. 21 and 22 of oh. 401, P. & L. Laws of 1869, provide as follows:
“ Sec. 21. The grading, graveling, planking, macadamizing, or paving to the center of any street or alley, and the grading, graveling, planking or paving of any sidewalk, and the paving of any gutter, shall he chargeable to and payable by the lots fronting or abutting upon such street, alley, sidewalk or gutter, not exceeding the amount to which such grading, graveling, macadamizing, planking or paving shall be adjudged by said board to benefit such lots.
“ Sec. 22. The construction and keeping in repair of the docks in front of lots or parcels of land along the banks of the rivers in stdd city, and the dredging of the same to a width not exceeding fifty feet towards the center of the river, where such rivers have been dredged, shall be chargeable to and payable by the lots or parcels of land so fronting; and said board shall have the same authority over said rivers and lots or lands fronting thereon as they have over streets and lots and lands fronting thereon, and shall be governed by the same rules as in the case of imiirovement upon streets.”
Sec. 23 of said chapter, as amended by sec. 3, ch. 401, P. & L. Laws of 1870, reads as follows:
“ Whenever the board of public works shall deem it necessary to grade or otherwise improve any street, alley, sidewalk or public ground, or to dredge or dock any of the livers, or to abate any nuisance, they shall cause to be made an estimate of the costs of such work, and shall put the same on file in their office, and such estimate shall be open to the inspection of any iiarty interested. Thereupon the said board shall make to the common council such recojnmendation in relation to the proposed work as they may deem proper; and upon the same being adopted by the common council in whole or in part, the said board may order so much of the work to be done as shall have been adopted by the common council,” etc.
Sec. 24 of said chapter, as amended by sec. 4, ch. 401, P. & L. Laws of 1870, reads as follows:
“Before ordering any such work to be done by the owners of lots or lands [323]*323fronting on the same, said hoard shall view the premises and consider the amount proposed to be made chargeable against such several lots or pieces of land, and the benefit which in their opinion will actually accrue to the owners of the same in consequence of such improvement; and in case the benefits in their opinion amount to less than the cost of such improvement, the balance shall be paid out of the ward funds in the ward or wards in which such improvement is made, and the board shall indorse then decision in every such case on the estimate of the cost of such improvement, and file the same in their office.”
Sec. 25 of said chapter, as amended by sec. 5, ch. 401, P. & L. Laws of 1870, reads as follows:
“Thereupon said board shall give notice for six days in the official city papers, to the owner or agent of any lot or parcel of land fronting upon any such improvement to be made, that an assessment of benefits for such improvement is ready for inspection in their office, and requiring him to do the work mentioned in such notice, within a reasonable time therein to be specified, and if such work shall not be done within such time, the said board shall contract for the doing of the same, as hereinbefore provided, and no further nolice or publication of such assessment shall be necessary. The owner of any lot or tract of land who feels himself aggrieved by the decision of the said board, as to the amounts of the benefits by them adjudged to accrue to him by reason of any improvement charged against his lot or parcel of land, may, within thirty days after the expiration of the notice of such work being ordered, by petition appeal to the common council, who shall hear and determine such appeal as they may deem just and proper. Should such appellant be dissatisfied with the decision of the common council, upon his appeal, or should such council fail to decide upon his appeal for twenty days after the petition therefor shall have been presented to them, said appellant may, within thirty days after the making of such decision, or after the expiration of said twenty days, appeal to the circuit court of Milwaukee county,” etc.