Pabst Brewing Co. v. City of Milwaukee

133 N.W. 1112, 148 Wis. 582, 1912 Wisc. LEXIS 85

• Court: Wisconsin Supreme Court
• Decided: March 12, 1912
• Status: Published

Opinion

The following opinion was filed January 9, 1912:

Siebecker, J.

The complaints were challenged by the defendant when evidence was offered by demurrers ore tenus, upon the ground that the facts alleged constituted no cause of action for the recovery of damages by the plaintiffs by reason of the erection of the viaduct in front of the plaintiffs’ premises abutting on Eirst avenue. When such objection is made to a complaint it will be liberally construed and all reasonable presumption to accomplish justice will be allowed in its favor. Before the trials and before evidence was received, amendments 'were properly allowed pertaining to the establishment of street grades after February 20, 1852, and to the default of the city in omitting to make any assessment of benefits and damages as to the plaintiffs’ properties by the alleged change of grade. After such amendments the complaints were sufficient to show that an assessment of benefits and damages, as provided by the city charter, had not been made by the city either before or after the construction of this viaduct.

If the charter provisions respecting alteration of grades of streets are applicable to these cases, it further appears that the complaints omitted to allege that the plaintiffs did not sign the petition asking for the alteration of the grade of the street. In sec. 8 of ch. YII of the city charter it is provided “that no owner of any lot, . . . who shall . . . have signed a petition asking for such alteration of grade, or a petition asking for the grading of a street in conformity with such altered grade, shall be entitled to compensation, but every such owner shall be deemed to have waived and relinquished all claim to compensation for any injury in consequence thereof; and no damages, costs or charges arising to such owner from such alteration of grade, shall be assessed or paid to such owner.” It is contended that this provision of the charter is an exception to the statutory right granting the abutting lotowner the right to recover the damages caused by an alteration of established street grades and hence must be negatived in the complaint, because it is an allegation which is essential to support the cause of action. However, this provision ,o'f the charter, in its nature, is not an exception to the right granted, but is a condition which goes to defeat it and hence is matter of defense. It defeats the operation of the parts of the charter which grant the right to damages and goes in avoidance of the right instead of excepting it therefrom. The. distinction between an exception and a proviso in a statute is clearly stated in Rowell v. Janvrin, 151 N. Y. 60, 15 N. E. 398, as follows:

“An exception exempts something absolutely from the operation of a statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes out of the statute something that otherwise would be part of the subject matter of it; a proviso avoids them by way of defeasance or excuse.”

We consider that the provision relied on does not embody an exception to the right granted, and .hence to state their cause of action the plaintiffs were not required to negative it. Splinter v. State, 140 Wis. 567, 123 N. W. 97; Rowell v. Janvrin, supra; 31 Cyc. 115.

It is also claimed that the alleged causes of action do not constitute a ground for a claim for damages because ch. 376, Laws of 1901, makes' full provision for the construction of viaducts over railroad tracks and for crossing public streets in cities of the first class, regulates the proceedings, and provides for ascertaining the damages caused thereby and the manner in which funds to defray all costs, damages, and expenses shall be raised; and hence that the charter provisions prescribing what steps shall be taken in making an alteration of the grade of streets and assessing the benefits and damages, in the manner therein prescribed, have no application here and need not be followed. Sec. 2 of ch. 376, Laws of 1901, enacts:

“Whenever the common council of such city shall have determined to erect and construct such a viaduct it shall cause fo be made a complete profile plan and detailed specifications for the work, with an estimate of the cost thereof, and as soon thereafter as practicable the city may enter upon the construction of said viaduct, . . . and all provisions of law relative to public work or improvements in said city, which are not inconsistent with the provisions of this act shall apply to the work hereby authorized, and all official acts incidental thereto. If by the construction of such viaduct . . . any damages shall be sustained by the owners of abutting property, to the property owned by them, snch damage shall be ascertained and determined in the manner provided by law for the determination and assessment of damages for the alteration of the grade of a street in said city and shall be paid as hereinafter provided.”

We find nothing in the context of this provision expressly to the effect that the damages caused to abutting lotowners by the construction of a viaduct shall not be ascertained as prescribed in cases of alteration of street grades. It is argued that the language of this section, “and as soon ... as practicable,” after plans, specifications, and an estimate of the cost have been made, “the city may enter upon the construction of said viaduct,” evinces an intent that the construction of the viaduct is to proceed without an assessment of benefits and damages, as is provided in other cases of alteration of street grades, and hence that the charter provisions respecting the assessment of benefits and damages do not apply. The phraseology employed cannot be said reasonably to imply such an intent. Sec. 5 of ch. 37 6 provides that funds for the construction of a viaduct, including payment of damages to abutting owners, shall be provided by a bond issue. There is nothing therein to indicate that the city is not required to follow the usual course for ascertaining the amount of the costs and the damages of a city improvement before undertaking the construction, and to provide the necessary funds therefor. The context of the law contains no express provisions on the subject, nor does it necessarily imply that the charter provisions for assessment of benefits and damages are inapplicable to this viaduct statute. Hence, they must be held to apply in the instant cases as to an alteration of an established street grade. There is no dispute but that the city omitted to take the steps prescribed for the assessment of the benefits and damages resulting to the plaintiffs from the construction of this viaduct; hence they are entitled to maintain these actions to compensate them for the damages caused to their properties by this change of grade.

The plaintiffs planted tbeir complaints upon tbe ground that the construction of this viaduct constituted a change of the grade of a street. The case of Colclough, v. Milwaukee, 98 Wis. 182, 65 N. W. 1039, held that the erection of a viaduct in a street graded to an established grade was an alteration of such grade and entitled the abutting owners to the actual damages they sustained therefrom. It is claimed that the evidence fails to show in each'of these cases that First avenue had been graded to conform to an established grade prior to the construction of this viaduct. It is admitted that prior to the grading and paving of First avenue with cedar blocks by the lotowners under the supervision of the city authorities in 1888, the city had by ordinance established the grade of this street. It was held as matter of law, under the ■evidence adduced, that before the construction of this viaduct this street had been graded to atí established grade. The defendant asserts that this ruling of the trial court is not sustained by the record. It appears as undisputed under the evidence that the common council in 1888 directed that First avenue be paved with granite blocks and that upon the request of the abutting property owners it rescinded such action to permit such owners to pave it with cedar blocks; that the abutting owners undertook and made this improvement under the authority of the board of public works and under the direction of the civil engineering department of the city; that street levels for grading and paving the street were furnished the owners by the engineer in charge thereof -; that the owners graded and paved the street as directed and conformably to the levels so furnished, and that when completed the work was approved by the department of public works upon the report of the assistant city engineer. Upon a report to the ■common council of the satisfactory completion of the improvement by the abutting owners the common council allowed and ordered payment to such owners of the bills for paving the crossings and the construction of the gutters, and such bills were thereafter duly paid. The assistant engineer’s evidence, to the effect that the levels furnished for making such improvements were of the established grades, is without dispute. These positive facts and the facts and circumstances showing the course of dealing between the city and the lotowners in the making of this improvement furnish ample ground to sustain the conclusion that when the street was paved in 1888 it was graded to conform to an established grade. In the light of the use of the street during the intervening years and the fact that the original bed thereof was of a low and swampy nature, liable to allow the surface to become uneven and depressed below the level of the original grade, the fact that the actual grade of the street in 1902 varied from the established grade at the time of construction does not raise such a conflict as to require submission of the evidence to the juries.

Evidence of the value of the premises before and after the construction of the viaduct was received, and in connection therewith evidence was admitted over objection of the original cost of the buildings and real estate, of the effect of the viaduct structure and its use by the public upon the light and dampness of the plaintiffs’ properties, and of the noise and vibration arising from the viaduct as affecting plaintiffs’ properties and their occupancy. An exception is urged to the latter class of evidence on the ground that it was immaterial to the question of depreciation of the properties and allowed the juries to include elements of injury to property not contemplated in the law. The instructions on the subject of damages are not before us. We must assume that the juries were properly limited in fixing the amounts of the damages to the properties to the depreciation in the fair market value thereof after the change of grade resulting from the construction of this viaduct, and hence cannot say that the admission of the evidence excepted to operated to the prejudice of the defendant.

It is claimed that the item of $455.75, separately found in the Schlitz Case as special damages resulting to the structures on the premises in the course of the construction of the viaduct, cannot stand. It appears in evidence that the foundations and walls of the structures on these premises were injured during the construction of the viaduct by the vibrations caused by the driving of piles for the foundation of the viaduct piers. This process of construction appears to have been appropriate for the proper construction of the viaduct, and the injury to the plaintiff’s premises which resulted therefrom is such as plaintiff suffered by reason of defendant’s erection of the structure. We .need not determine whether such damages are contemplated as included within the damages to be awarded to abutting property owners under the provisions of ch. 376, Laws of 1901, since the plaintiff had the right to hold defendant as a trespasser upon its rights in proceeding to erect the viaduct in disregard of the provisions of the statute which conferred the right on the city. Under these circumstances the city is liable in tort for the damages caused by the wrongful invasion of the plaintiff’s property rights. Filer &. S. Co. v. Milwaukee, 146 Wis. 221, 131 N. W. 345; Waukesha v. Randles, 120 Wis. 470, 98 N. W. 237. Under the evidence it is shown that this item of damages was the proximate result of the construction of the viaduct and hence attributable to the defendant’s wrongful conduct. Plaintiff was properly awarded recovery therefor.

We find no reversible error in the records of these cases.

By the Court. — The judgments are affirmed.

A motion for a rehearing was denied March 12, 1912.