McMillan v. Fond du Lac County

Siebeckee, J. The appellant claims that the defendant city erroneously charged against his property part of the costs for the 1902 improvement of the street on which it abuts, upon the ground that this property is not subject to assessment for this improvement under the provision of the city charter to the effect that the cost of paving, macadamizing, [580] or grading of any street should be assessed upon the abutting property, but that such property should not be subjected to and assessed for a second or subsequent improvement, provided that in the-case of graveling a street the original improvement consisted in “placing thereon of at least one foot in depth by sixteen feet in width of gravel to entitle such improvement to be a permanent one within the meaning and provisions of the foregoing proviso'.” Sec. 8, ch. 299, Laws of 1885. It is averred that the street in front of this property was improved in 1869 by grading and paving it, and that the cost thereof was assessed against the abutting property, and that the action of the city in requiring payment of the cost of such improvement by abutting owners exempts the property from assessment for the cost of macadamizing the street in 1902. It is established by the evidence and the court found that the improvement of 1869 was not of a character such as brought it within the class of permanent improvements contemplated by the provision of the charter. We thinlr the trial court held properly that to exempt abutting property from the payment of the cost of paving or macadamizing a street, by reason of having paid for former assessments, it is necessary that such former improvement should be one which substantially covered the street from curb to curb. The improvement of 1869 consisted of a strip through the center of the street only ten feet wide, and left the remainder of it an earth surface between the pavement and the edges of the street. The improvement is not in character or extent such as is commonly understood to be a paved or macadamized street. This conclusion is reinforced by the provision in the charter that no graveled street should be deemed a permanently improved one within this provision unless the improvement was at least sixteen feet in width and a foot in -depth. Under the facts shown we are led to the conclusion that the trial court properly held plaintiff’s property liable for its proportionate share of the cost of the 1902 improvement of the street. [581] It is urged that the proceedings taken, for making the improvement and the assessment of the cost on the abutting’ property are invalid on account of the failure of the city authorities to take the steps specified in the charter. The various defects in the proceedings are such as do not go to the groundwork of the tax, but are irregularities in the proceeding after the council had obtained jurisdiction to make the improvement and to assess the cost thereof upon the abutting property. These irregularities did not operate to impose any unjust portion of the burden on appellant as an abutting lotowner. In Gleason v. Waukesha Co. 103 Wis. 225, 230, 79 N. W. 251, an action similar to this, it was declared: “Where there has been a substantial compliance with statutory requisites in regard to the imposition and collection of special taxes or local assessments, and the complainant is unable to show that any injustice has been done him, equity will afford him no relief against such taxes and assessments.” It is also- provided in defendant’s charter, in respect to this subject, that: “No error, informality, or defect in the proceeding had before or in the issuance thereof [i. e. of a special tax certificate] shall impair or vitiate the- right of the person or city to recover the amount of such lien, in subsequent proceedings.” Sec. 4, subch. XIV, ch. 152, Laws of 1883. A like provision was considered in Warner v. Knox, 50 Wis. 429, 436, 7 N. W. 372. TJnder the terms of. this provision appellant has no grounds for complaint on account of these irregularities. In answer to the argument that he was injured by being compelled to pay for curbing, it appears that the council obtained jurisdiction to macadamize the street and to place a suitable curbing thereon by petition of the requisite number of property owners. Whatever irregularities occurred thereafter in carrying out the enterprise as to placing the curb are not such as to afford any ground for relief against the tax under the foregoing provision of the charter and the equi [582] table rule that appellant must show that he has suffered an injury by reason thereof. This state of the case calls for affirmance of the judgment of the trial court. By the Court. — Judgment affirmed.