Dore v. City of Milwaukee

LyoN, J. We cannot doubt that the raising of Buffalo street from the east end of the bridge to East Water street, as stated in the complaint, is a change of the grade of the former street, within the meaning of the charter of the city of Milwaukee, which provides for compensation to the owner of any lot or parcel of land injuriously affected in consequence of the alteration of the grade of a street. Laws of 1871, ch. 181, subch. VII, sec. 8, p. 363. The position of the learned counsel for the defendant city, that the law applies only to cases where the grade of an entire street has been changed, is, we think, untenable. Should the law be so construed, it would or might, in many, perhaps in most cases, deprive the owners of the lands injuriously affected by a change of the grade of streets, of all remedy for such injuries. Manisfestly such was not the intention of thé legislature when it enacted the above law;. The complaint states facts which show that the lot of the plaintiff described therein is injuriously affected by the alteration of the grade of Buffalo street, and hence, that he is entitled to compensation therefor; and the controlling question raised by the demurrer is, Does the complaint allege facts which entitle the plaintiff to maintain this action? The following are believed' to be well settled propositions of law: 1. In the absence of a statute giving them, a municipal corporation is not liable for damages resulting from an authorized — 117 — change of the grade of a street, if such change be made with reasonable still and care. See 2 Dillon on Corp., §§ 781-3, and numerous cases cited in the notes. 2. If a statute gives compensation for injuries in such cases, and provides specific means to recover the same, other than an ordinary civil action, the remedy of the statute is exclusive. Id., § 784, and cases cited. 3. A municipal corporation is liable in an ordinary civil action for damages resulting to a lot-owner for injuries caused by the alteration of the grade of a street made pursuant to an unauthorized or illegal order of the city council. Crossett v. Janesville, 28 Wis., 420, The charter of the city of Milwaukee provides how the damages to a lot-owner caused by the alteration of the grade of a street shall be ascertained, to wit, by assessment by the board of public works (subch. VII, sec. 8, supra), and gives such lot-owner the right of appeal to the circuit court from the assessment (sec. 11). It is also provided that “ no action at law shall be maintained for such damages or injuries” (sec. 12). It is not claimed in the complaint that the work of altering the grade of Buffalo street was carelessly or unskillfully done; and it necessarily follows from the foregoing propositions, that this action cannot be maintained unless the raising of such grade by. the city authorities was without authority of law. And further, the facts showing that the work was unauthorized, should be stated in the complaint. In the absence of averment to that effect, the legal presumption is, that the city authorities proceeded according to law, and that the improvement was lawfully made. "We fail to find any such averment in the complaint. It is only alleged therein that the common council of the defendant city authorized and directed the work to be done, and that the city, by its proper authorities, caused the raising of Buffalo street at the place mentioned; but it fails entirely to show the proceedings of the authorities to that end. The averment may — 118 — be true, and still the improvement may have been lawfully made; and, as just observed, the presumption is that it was lawfully made. We suppose the city authorities had no power under the charter to cause the improvement to be made until the plaintiff’s damages were assessed by the board of public works, and such assessment confirmed by the common council as required by the charter (secs. 8-10, supra); but if those proceedings were not had, that fact, or some other fact showing that the improvement was unauthorized, should be stated in the complaint. , Without such averment, the complaint fails to state a cause of action. We conclude that the demurrer should have been sustained. It will, of course, be proper for the circuit court to permit the plaintiff to amend his complaint, if he desires to do so. By the Cov/rt. — Order reversed, and cause remanded for further proceedings according to law.