Henry v. City of La Crosse

The following opinion was filed April 4, 1917: Kerwin, J. It appears without dispute that the railroad of the defendant Chicago, Milwaukee & St. Paul Railwa/y Company was constructed at grade across Rose street in the city of La Crosse in 1856. Mill street is parallel and ad [629] jacent to Rose street. Each of these streets is and was for a long time prior to 1882 covered by a network of railroad tracks. In 1883 a viaduct was built by authority of law at the Rose-street crossing of defendant Chicago, Milwaukee & St. Paul Railway Company. So for more than thirty years prior to the building of the new viaduct in 1913 there had been a separation of grades at Rose street, the floor of the viaduct being about twenty-two feet above the level of the railroad tracks and reached by abrupt paved approaches in Rose street. In 1913, on account of accidents at the Mill-street grade crossing, the railroad commission of Wisconsin duly ordered that the street railway tracks be removed from Mill to Rose street; that a new viaduct be constructed in place of the old Rose-street timber structure and the street railway tracks built over it. The order of the railroad commission further provided that the defendant Chicago, Milwaukee & St. Paul Railway Company should construct the new viaduct in accordance with approved plans. The approaches to the floor of the new viaduct are less abrupt and longer than those' of the old viaduct, although the floor of the new viaduct is on the same level as that of the old structure. . The order of the railroad commission provided for the apportionment of the expense of construction and maintenance of the new viaduct, and pursuant to this order the defendant Chicago, Mikvaukee & St. Paul Railway Company tore down the old structure and erected the new with longer, paved approaches. A nine-foot roadway is left on each side of the approaches at the same level as the abutting property. The approaches are claimed by plaintiff to be an additional burden. The railroad commission ordered that the defendant city pay damages which might result from the work of the new structure. While the city disclaimed any liability for damage to abutting owners, it went through the form of ascertaining the same, but expressly refused to pay any damages [630] to abutting owners on the ground, among others, that the building of the viaduct did not result in the change of a permanently established grade. No part of the expense of the viaduct was charged to abutting owners. The grade was' established by- ordinance in 1883 when the first viaduct was built and never changed, as found.by the court below. All the findings are well supported, and we shall spend no time discussing the evidence. The main question involved is whether any of the defendants is liable for damages to abutting property on account of the construction of the viaduct. The court below held that, since there was no change of an established grade by the construction of the viaduct, the abutting owners were not entitled to damages against any of defendants. The railroad commission of the state of Wisconsin had power to order the construction of the viaduct and the defendant Chicago, Milwauicee & St. Paul Railway Company the right to construct it in compliance with the order of the railroad commission. Milwaukee v. Railroad Comm. 162 Wis. 127, 155 N. W. 948. The extension of the track of defendant Wisconsin Railway, Light and Power Company over the right of way and operation of cars thereon was not an additional burden, hence did not entitle the abutting own- • ers to damages. La Crosse City R. Co. v. Higbee, 107 Wis. 389, 83 N. W. 701; Hobart v. Milwaukee City R. Co. 27 Wis. 194; Younkin v. Milwaukee L., H. & T. Co. 120 Wis. 477, 98 N. W. 215. It is a well settled rule that where a change of grade is made by authority of law and with due care the municipality making the change is not liable for consequential injury to abutting lots, unless expressly made so by statute or the constitution. Drummond v. Pau Claire, 85 Wis. 556, 55 N. W. 1028; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039; [631] Harrison v. Milwaukee Co. 51 Wis. 645, 8 N. W. 731; Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65. It is clear that the provisions in the order of the railroad commission providing for the building of the viaduct to the effect that the defendant city should “assume responsibility for any alleged damage to adjacent property or business caused by the issuance or enforcement of this order, or, by the proper prosecution of the work,” did not create or attempt to create any liability to abutting owners for change of grade other than that provided by law. In 1883, when the grade of Rose street was established, the city of La Grosse was operating under a special charter (ch. 135, Laws 1876), which contained no provision for payment of damages to owners of abutting property on account of change of grade of streets, and there was no general statute at that time imposing such liability. So at the time the grade of Rose street was established in 1883 the city had the right to change or alter any prior established grade without compensation to abutting owners. Harrison v. Milwaukee Co., supra; Colclough v. Milwaukee, supra. It is true that in 1901 the city of La Grosse adopted secs. 925 — 172 and 925 — 178, Stats., relating to establishing grades, but the evidence shows conclusively, and the court below found, that the new viaduct was built on the grade established by the ordinance of 1883, hence there was no change of grade after 1883. Some argument is made that the so-called “paper grade” made by the ordinance of 1883 was not a “permanently established grade” within the meaning of sec. 925 — 172, therefore a permanently established grade, within the meaning of the statute, was not established until the new viaduct was built. This contention would lead to the conclusion that there was at no time a change of the established grade. The so-called “paper grade” was definitely established by [632] ordinance of the common council, duly passed at the time the old viaduct was constructed, and established the grade upon Rose street from Gould street on the south to Hagar street on the north. But, as found hy the court, Rose street at no time prior to the construction of the new viaduct in 1913 was graded to the established grade at all points. The ordinance passed at the time the new viaduct was built reaffirmed the grade as established by the ordinance passed when the old viaduct was built, and the new viaduct was built according to such grade. It follows that upon no theory of the case was there a change of the established grade, hence no liability on the part of any of the defendants to abutting owners. By the Court.- — The judgment is affirmed. A motion for a rehearing was denied, with $25 costs, on June 12, 1917.