Smith v. City of Eau Claire

Lyox, J. Perhaps no rule of law is more completely settled than is the rule that if consequential damages result' to property owners from raising or lowering the grade of a street by a municipality, it is not a taking of private property for public use, within the meaning of sec. 13, art. I, of the constitution, and that if the municipality act under authority of law in making the change of grade, and with due care, it is not liable for such damages, unless made so by some statute or constitutional provision. Such is the doctrine of Alexander v. Milwaukee, 16 Wis. 247; Dore v. Milwaukee, 42 Wis. 108; Wallich v. Manitowoc, 57 Wis. 9; and other cases determined by this court. See also Dill. Mun. Corp. §§ 989 (782), 990 (783), and cases cited in notes. The principle upon which the rule is based seems to be that the purchaser of a lot upon a street is supposed to calculate the chances that the grade of the street may be changed, — 460 — and sucb contingency is an element which affects the price he pays for the lot. Counsel for plaintiff cited many cases which, he contends, establish a different and broader rule of compensation for damages caused by changing the grade of a street. These are from Illinois, Nebraska, Georgia, California, Missouri, and West Yirginia. The constitution of each of those states provides that private property shall not be taken or damaged for public use without just compensation therefor. All the cases cited enforce a remedy for consequential damages in a case like this, solely on the ground that the words “ or damaged ” are contained in the respective constitutions of those states. It is said in most of the cases that, but for those words therein, the lot-owner would be without remedy for consequential damages to his lot caused by the change of grade. Our constitution only provides compensation for the talcing of private property for public use (art. I, sec. 18), and hence does not reach a case of mere consequential damages, which is not a taking, within the meaning of the provision. The injury of which the plaintiff complains, and for which he seeks to recover damages, is entirely consequential under all the authorities. The complaint shows that the ordinance ordering the change of grade was regularly passed and published, and is valid, and that with a single exception the work of changing the grade was properly done. The exception was found in the following quotation from the complaint: “ Said street is now filled to the height fixed by said grade, as established by said last-mentioned ordinance, and, as said plaintiff is informed and believes, in some portions thereof to a height above the grade as established by said amended ordinance.” If the plaintiff was injured by such excess of filling beyond that authorized by the ordinance, the city is liable for such injury, although no statute prescribes such liability. It was so held in Crossett — 461 — v. Janesville, 28 Wis. 420, and the same rule has since been frequently applied by this court. But the complaint fails to aver in what portion of the street such excess of filling was done, or the extent of it, or that the plaintiff’s lot was injured thereby. It may have been done a mile distant from his lot. It may not have been an inch above the established grade, and still the complaint would be true. Hence the averment above quoted, so far as it charges a violation of the ordinance, fails to state a cause of action, and is entirely immaterial. So far as this plaintiff is concerned, the complaint shows a proper execution of a validV ordinance. This brings us to the inquiry, Is there any statute which entitles the plaintiff to compensation for the consequential injury- to his lot caused by such change of grade? The charter of the city of Earn Glaire now in force is contained in ch. 184, Laws of 1889. It was published and took offect March 30, 1889. The charter in force before that time is contained in ch. 16, P. & L. Laws of 1872, entitled “ An act to incorporate the city of Eau Claire,” approved March 2, 1872, and in certain acts amending the same. The title of ch. 184 is £ An act to revise, consolidate, and amend the charter of the city of Eau Claire, approved March 2, 1872, and the several acts amendatory thereof.” Ch. 184 contains no provision making the city liable for damages caused by a change of grade of a street. Ch. 16 of 1872 (the old charter) contained such a provision. Is that provision repealed by the new charter? The general rule is that a statute which revises the subject matter of a former statute works a repeal of such former statute without express words to that effect. Lewis v. Stout, 22 Wis. 234. Hence, if ch. 184 contained no express repealing clause, it would operate to repeal ch. 16 by implication,-for it revises the whole subject matter of the latter chapter. But ch. 184 contains a repealing clause, which is as follows: “ All acts — 462 — and parts of acts inconsistent with and conflicting with the provisions of this act are hereby repealed.” It was held, in Lewis v. Stout, that such a repealing clause saves all provisions in the old act which are not inconsistent with the revised act. So it was held in that case that a provision in -a former statute, requiring a certain bond to run to the governor, was not repealed by a revising act which required the bond to be given, but did not provide to whom it should be executed, and which only repealed acts inconsistent therewith. It is obvious that the provision in the former statute, thus saved, was not inconsistent with the revising statute. But we have no such case here. Ch. 184 of 1889 does not charge the city with liability for consequential damages caused by a lawful change of the grade of a • street. Standing alone, it is as complete an immunity from such liability as though it had been expressly enacted therein that the city should not be so liable. The former statute imposed such liability in terms. That the two are inconsistent with each other seems to admit of no doubt. Counsel for plaintiff has submitted an ingenious argument in support of the claim that the city is liable in this action, based upon the assumption that the ordinance in question preceded ch. 184. This is an error. The ordinance speaks from the date of its publication, which was April 9, 1889. Under both charters it has no force or validity until published. Ch. 184 was published, and took effect, March 80, 1889. Hence the argument fails. Lastly, it is maintained on behalf of plaintiff that' ch. 255, Laws of 1889, charges the city with liability for the damages here claimed. Without quoting that chapter, it is sufficient to say of it that it imposes liability for consequential damages only upon municipalities, companies, or corporations who “ close up, use, or obstruct ” highways, so as materially to interfere with their usefulness as such, — 463 — or to the injury or damage of property abutting thereon on either side. The lawful change of the grade of a street is not a closing up, or use, or obstruction of the street, within the meaning of this statute. Manifestly, it was not intended to reach a case like this. Had it been so intended, it is reasonable to believe that very different and more specific language would have been employed to express such intention. By the Court.— The order of the circuit court is reversed, and that court is directed to sustain the demurrer.