Milwaukee Trust Co. v. City of Milwaukee

131 N.W. 439, 146 Wis. 245, 1911 Wisc. LEXIS 132

Opinion

SiebecKER, J.

Tbe plaintiff appealed, in a proceeding under the provisions of cb. YII of tbe Milwaukee city char ter for relief against an unjust allowance of damages caused to the property owned by it as trustee.

Sec. 8 of eb. YII of the city charter provides that the owners of lands which may be affected or injured in consequence of the alteration of the grade of a street theretofore graded to a former established grade shall be entitled to compensation therefor. This section also provides that such damages and the costs and charges involved in improving the street, as provided by sec. 7, and changing the grade of any street shall be taken into consideration and be allowed in assessing the benefits and damages on account of such street improvements, and if such damages exceed the benefits found by the board of public works the excess shall be paid out of ward funds, unless the owner had waived the same. Sec. 11 of this chapter of the charter provides for an appeal to the circuit court for Milwaukee county from such an assessment as confirmed by the common council within twenty days after such confirmation.

• It is urged that the notice of appeal in this case is wholly insufficient and defective. The notice sets forth appellant’s ownership of the property, that it feels aggrieved by the assessment of benefits and damages made by the city on account of such improvement of Oakland avenue abutting on its property, that it appeals from such assessment to the circuit court, and that the grounds for taking such appeal are that such assessment of benefits and damages is inequitable and unjust, in that no damages, costs, and charges arising from the change of grade incident to the making'of the improvement have been allowed. The notice is irregular in referring to the item of $200 as benefits instead of damages and in charging generally that all of the proceedings are void. These defects are plainly clerical errors which in no way prejudiced or misled the city in the matter. We are of the opinion that the notice served is sufficient under the charter provisions and must be held a compliance therewith.

It is alleged that the court erred in refusing to order formal issues to be framed before proceeding with the trial. Why this request was denied is not readily perceived. To have the issues plainly and clearly presented by formal pleadings obviously promotes the orderly and intelligent conduct of the proceedings in court. It appears, however, that the trial court admitted the evidence offered upon the material questions. Under these circumstances, because of the wide discretion of the trial court in the control of such proceedings, we cannot hold the refusal to be reversible error.

The city avers that the plaintiff as an abutting lotowner is not entitled to damages occasioned by the change of grade because in making the improvement the city is not attempting to assess plaintiff for any benefit resulting to its lots from the improvement. This contention is upon the theory that under sec. 8 of ch. VII of the city charter no damages caused to abutting property owners by a change of the grade of astreet can be recovered unless it appears that the city is seeking to charge such abutting lotowner with the benefits to such lots, and that in no case are damages to be allowed in excess ■of the benefits assessed. This contention is against the plain meaning of the provisions of' this section. The language of this section is general in terms and embraces all cases wherein jury results to the abutting property from an alteration of the grade of a street already conformed to an established grade. We find nothing in the context of the section which limits the general character of this provision and must therefore give the phraseology the ordinary and usual significance. The effect of such interpretation makes the city liable in all •cases for the damages caused abutting lotowners by the alteration of street grades. The provision which directs that the, excess of damages, costs, and charges over the benefits assessed shall he paid out of the ward funds expressly negatives the contention that the damages recoverable are limited to the benefits assessed. Obviously, the city is therefore liable to the owner of property abutting on a street for the damages resulting to him from an alteration of the street grade, and the-same are recoverable on appeal to the circuit court in an improvement proceeding and an assessment of benefits and damages. This construction is supported by the case of Liebermann v. Milwaukee, 89 Wis. 336, 61 N. W. 1112, and is expressly ruled in the case of Filer & S. Co. v. Milwaukee, ante, p. 221, 131 N. W. 345.

It is urged that the court erroneously allowed the plaintiff to recover in°the trial on this appeal from the assessment of' benefits and damages the damages caused by the unlawful change of grade by the excessive filling of the street of from 1.8 feet to 2.3 feet above the newly established grade. It is manifest from the record that the court allowed recovery for the injury caused by such filling of the street above the grade and included it in the damages allowed at the sum of •$1,166.44. The question is: Can plaintiff recover the damages arising from such unlawful filling of the street in the appeal in this proceeding ? The i'ight to appeal and litigate the-question of damages in the proceedings for the improvement of a street is conferred by the charter provision heretofore cited. The scheme thereby established is that, whenever the board of public works and the common council of the city deem it necessary to alter a street grade for the purpose of' improving the street, they shall allow the damages suffered by the owner on account of such change of grade, in addition to such other damages as may be caused the loto.wner by such-improvement, that they shall offset them against any benefits resulting from the improvement, and if such damages -exceed the benefits the city is to be liable for the -excess. In the-appeal allowed the lotowner he is granted the right to test the correctness of the assessment of the benefits and damages so-made by the board of public works and confirmed by the common council. This remedy by appeal is granted to abutting-property owners for relief against grievances they may have- against tbe assessment of benefits and damages made by tbe city authorities on account of tbe contemplated improvement. It necessarily limits tbe inquiry on appeal to tbe subjects on wbicb tbe city authorities acted in making tbe assessment. Tbe assessment embraces only tbe benefits and damages incident to tbe making of tbe authorized improvement and alteration of tbe street grade and hence cannot include any damages caused by any unlawful grading in excess of that authorized by tbe established alteration of grade. On such an appeal tbe appellant is therefore restricted to tbe right to re-examine tbe question of tbe assessment of such benefits and damages as result from improving and grading tbe street to tbe authorized alteration of grade. In tbe instant case the court received evidence of and allowed damages resulting from the unlawful grading and filling of tbe street to the extent of about two feet in excess of that authorized by tbe proceedings for tbe improvement. This was an injury to tbe abutting owner not embraced in tbe original assessment of benefits and damages and hence could not be considered and litigated on tbe appeal. In tbe light of tbe evidence and tbe state of tbe case this court cannot separate tbe items of damages caused tbe plaintiff by these unlawful and tbe lawful acts of tbe city in carrying out tbe improvement, and we must therefore remand tbe cause for a new trial.

By the Court. — Judgment reversed, and tbe cause remanded for a new trial.