Watkins v. City of Milwaukee

Cassoday, J. This court has already held, on demurrer, that the assessment against the lots for the cost and expense of raising the street to the changed and altered grade, and the sale of the lots for the same, and the certificates of sale issued thereon, were null and void. Watkins v. Milwaukee, 52 Wis., 98. It is now claimed that the city, by raising, the streets to the new grade, and failing to build proper sewers therein, turned the water in and left it standing upon the lots, and the same became stagnant and a nuisance, and hence that the city cannot legally assess the lots for the cost and expense of abating the nuisance thus caused by itself. It is to be observed, however, that such nuisance was abated by filling the lots. Whether such filling of the lots was injurious or beneficial to the plaintiffs is not alleged in the complaint, but is left entirely to inference. It may well be inferred that if the lots were damaged by raising the streets above the surface of the lots, and thus turning the [339] surface water from the street upon the lots, then they must be correspondingly benefited by filling the lots, so that the surface water would run therefrom into the street. In Smith v. Milwaukee, 18 Wis., 63, the assignee of several contractors sued the city, alleging that such contractors had done work upon lots in abating nuisances under regular contracts with the proper officers, by which they were to be paid in street commissioners’ certificates, and that the nuisance so abated had, like that in Weeks v. Milwaukee, 10 Wis., 242, been caused solely by the act of the city in constructing streets around the lots, and neglecting to put in. proper sewers, and hence claimed that the city was liable at law on the contracts for the amount of the assessments to pay for such work. The circuit court, however, refused to receive any evidence under the complaint, and dismissed the same upon the defendant’s motion, on the ground that it did not state a cause of action, and the judgment thereon was affirmed by this court upon appeal. In construing the complaint, Mr. Justice PaiNe, in giving the opinion of the court, concedes that, as a mere question of pleading, the aver-ments were sufficient to bring the case within the decision in the Weeks Case; and then, in discussing the liability^of the city directly to the contractor for the value of the work, under an implied power to make the contract, he refers to the clause of the charter (sec. 21, subch. 5, ch. 184, Laws of 1874) exempting the city from all liability, and said: “In the Weeks Case the point above referred to was very briefly-considered, being a minor question in the case. There was no examination of the precise ground upon which the right of the owner to restrain the sale should rest. Now, after making such examination, though fully satisfied with the decision, there made, that the owner has such right, yet we are also/ fully satisfied that it is a right of an equitable character, rather than one resting upon the technical invalidity of the [340] assessment at law. In all sucb cases, there being a nuisance in fact upon the lot, the city has jurisdiction to abate it, and the proceedings being regular, the assessment could not be held void at law; and the right of the owner to restrain the sale grows out of the fact that it would be a wrongful use of a legal proceeding for the city to sell his lot to collect the assessment, when it was at the same time liable to refund the amount as damages for having caused the very nuisance abated. It is in the nature of an equitable defense, resting upon the injustice of such a use of the proceeding at law, and should undoubtedly be disposed of according to established eqwUable principles.” Pages 61-8. Manifestly it was the opinion of the court that the only equitable ground upon which the injunction against the enforcement of the assessment for grading in the Weeks Case could have been sustained was that it would have been inequitable to have allowed the city to sell the plaintiff’s “ lot to collect the assessment, when it was, at the same time, liable to refund the amount as damages for having caused the very nuisance abated.” But, in the case before us, the filling of the lots to correspond with the grade of the streets was not only an abatement of the nuisance, but, for aught that appears; a satisfaction of the damages sustained by raising the grade of the streets. Compensation for such damages was secured to the lot owner by the charter, except in the cases therein provided. Sec. 8, subch. T, ch. 184, Laws of 1814. In the absence of such a statute the lot owner would have been without remedy. Harrison v. Milwaukee, 51 Wis., 662-4, and cases there cited. But here, in the absence of any allegation in the complaint to the contrary, compensation for damages to the lots by raising the streets must be presumed to have been fully made by filling the lots. For aught that appears, the lots are far more valuable than before the streets were raised, and the lots filled. If the plaintiffs [341] have been actually benefited by raising tbe streets and filling the lots, then they are in no condition to complain in equity of an assessment to the amount of such benefits. It is a fundamental principle that whosoever seeks relief in equity must first be required to do what is equitable. As observed in Smith v. Milwaukee, supra, “ the proceedings being regular, the assessment could not be held void at law.” This being so, and the plaintiffs having failed to allege any cause of action entitling them to equitable relief, the second ground of demurrer should have been sustained. For the reasons given, the order of the circuit court must be reversed, and the cause remanded for further proceedings according to law. By the Gowrt.— So ordered.