French v. City of Milwaukee

Cole, J. It seems to us there is hardly a question in this case which has not really been considered and decided by this court in former adjudications. The action is brought under the provision of the charter, to recóver damages occasioned to the plaintiff’s property by a change in the grade of the street. There is no dispute about these facts, that the grade of. the street in front of the plaintiff’s lots was first permanently established at about five feet and eight inches above the level of the Milwaukee river as it was in March, 1836; that in 1S56 the street was, by the owner of the lots, pursuant to the order of .the proper officers, filled and graded to the grade so established, was paved with a substantial stone pavement and a proper sidewalk made, all at the expense of the lots; that in [588] 1871 the city authorities changed the grade of the street, whereby the grade in front of the plaintiff’s premises was raised six feet; and that in 1872 the plaintiff, in obedience to the orders of the city officers, filled the street to the new grade, at an expense of $521.20, and a pavement tax for paving the street upon the new grade was assessed against the lots and paid by .plaintiff, amounting to' $710. It was alleged in the complaint, that, by reason of the change of grade and the filling up of the street thereby required, access to the premises had been rendered difficult and inconvenient; and that, in order to make the premises accessible and fit for occupation, it was necessary to fill up the lots at least six feet. In its general charge the learned circuit court told the jury that the plaintiff was entitled to recover $521.20, the expense of filling the street to the new grade; also the amount of the pavement tax which had been assessed against the premises and paid for putting down the pavement on the new grade; and further, that if the evidence satisfied them that it was necessary to fill up the lots in order to make them useful to the plaintiff, whatever the proof showed it was worth or would cost to fill the lots, the plaintiff was entitled to recover in the action. The principal contention now is, whether the court was right in this charge, and in refusing to give an instruction asked by the lear-ned city attorney on the trial, to the effect that the owner of an unimproved lot was not entitled to recover any damage by reason of a change of grade which did not deprive him of the use of any work already done by him, or at the expense of his lot. It is insisted that the provision of the charter under which the action is brought does not warrant a claim for damages in case of an unimproved lot, upon which no filling or cutting has been done which will be lost by reason of a change of grade. Oases involving a construction of the provision in question have frequently been before this court. Rut this is the first time, so far as we are aware, when this precise inter [589] pretation of the charter has been' suggested. In most, if not all, of the cases, however, which we have had occasion to consider, the property alleged to have been inj ured by the change of grade was improved property. Bat it seems to us that the construction which the provision has received when applied to that class of property, settles the meaning which must be given it when applied to unimproved property. It will be borne in mind that the charter provides that when the grade of the street has once been established, and is afterwards changed, “ all damages, costs and charges* arising therefrom shall be paid by the city to the owner of any lot or parcel of land, or tenement, which may be affected or injured in consequence of the alteration of such grade.” There is surely no express exception in this language of an unimproved lot; nor do we perceive any satisfactory reason for holding that such property is - excepted from the provision by necessary implication. The words are general, and embrace “ any lot or parcel of land, or tenement,” which may be affected or injured in consequence of the alteration of the grade. The argument of- the learned city attorney is quite subtile on this point. I am not confident that I fully apprehend it. He says the damages, costs and charges for which the city is here made liable, are not the damages, costs and charges occasioned by the old grade, or those caused by the new grade, but only those caused by the alteration of the grade. It makes no difference, he says, whether the present grade of a street was established by one ordinance, or by two, unless in the latter case some damage was occasioned by the change. In the case of an unimproved lot, he observes, if the grade is raised above the original level, and is again raised' still higher, no damage is caused by the change, because it will cost no more to fill the lot to the new grade than it would have cost if that grade had been first established. If by this counsel only meant to say that the labor and expense of filling a lot ten feet will-be the same whether such filling is done in obedience to one or two [590] city ordinances, the remark i's a truism. But that does not seem to meet the question at issue, which is, Has the lot been affected or injured in consequence of the alteration of the grade? In other words, has any new burden or expense been imposed upon it, or incurred by the owner, resulting from such change? Take the case at bar. A lot is filled five feet to bring it up to the established grade. The grade of the street is afterwards raised five feet more, and it becomes necessary, for lie convenient use and enjoyment of the property, or to make the lot salable, that it be filled in five feet more to bring it up to the new grade. Is it not idle to say that such additional filling costs the owner nothing; that the lot has not been*affected or injured in any way by the altered grade? The proposition seems'too plain for argument, that additional cost and expense must be incurred by the owner in the case supposed, in order to have a profitable use of his property. By parity of reasoning it- might be claimed that improved property was not injuriously affected by reason of the alteration of the grade, where the change made was in the direction of the first grade. For example, it might be said- with the same propriety that if a man raised his house ten feet to bring it up to the grade first established, and afterwards had to raise it ten feet more to bring it up to the new grade, he had really lost nothing, and his property was not injuriously affected by the change, for the grade in front of his premises might have been established in the first place at twenty feet above the surface of the lot. The object of the provision is plain. It is intended to indemnify a party whose property is affected or injured by the alteration of a grade of a street, which -has once been established by the city, for all damages to and charges arising from such change (Church v. The City of Milwaukee, 31 Wis., 512; Stowell v. The Same, id., 523); and this applies as well to an unimproved lot as to improved property. Under the charge of the court the jury must have found that it was necessary, in order that the plaintiff might have a [591] convenient access to his lots, and a proper use and enjoyment of them, that they should be filled up to the new grade. Of course, under such circumstances, the city was bound to pay the expense of necessary filling. That expense was a .proper item of damage. This is the doctrine laid down in the cases just cited; and it would seem needléss to add that these cases do not affirm or sanction the preposterous rule that the owner is to be absolutely paid for filling or excavating his lot, in order to bring it to the same relative position to the new grade it had before, whether such excavation or filling would be a benefit or damage to the property. It is only the expense of filling which is necessary for the proper enjoyment of the property, that the city is bound to pay for. But this whole subject as to the doctrine of Church v. Milwaukee and Stowell v. Same is so fully discussed by Mr. Justice Taylor in Tyson v. Milwaukee, decided on the 27th of May last, that it is unnecessary to add a single word more on this point. 1 The owner’s remedy in this case was not by appeal, as was held in Owens v. The City of Milwaukee, 47 Wis., 461. It comes under the ruling in Goodrich v. Milwaukee, 24 Wis., 422, and Church v. Milwaukee, supra. We have already said that the fact was admitted that the plaintiff, for filling the street and sidewalk in front of his premises to the newly established grade, incurred an expense of $521.20. lie also had to pay a pavement tax assessed against his lots, for paving the street upon the new grade, of $740. Both these items he had to pay in consequence of the alteration of the grade, and therefore was entitled to recover these damages in this action. This disposes of all the material questions in the case. By the Court. — The judgment of the circuit court is affirmed.