Van Hecke v. City of Stevens Point

Rosekberry, J. It is urged first that the ordinance of 1898 establishing the grade of Brawley street is void; second, that the common council, by the adoption of the plans and specifications, legally changed the grade of Brawley street; third, that the appeal provided by sec. 62.16, Stats., was exclusive of all other remedies and for that reason the plaintiff is not entitled to maintain this action; fourth, that the damages are excessive; fifth, improper argument of counsel. (1) It is the claim of the city that the original grade provided for a fail of one tenth of a foot in approximately 287 feet and for that reason the ordinance of 1898 is void. We are cited to no case and we find none which sustains the city’s position. Ordinances which are unreasonable may be declared void, but it is not within the province of a court to declare an ordinance void merely because it- fails to conform to the best engineering practice. Under our laws the [657] power of municipal corporations in the matter of establishing grades is very broad. Henry v. La Crosse, 165 Wis. 625, 162 N. W. 174, and cases cited. (2) It is claimed that by the adoption of the plans and specifications for the improvement the common council legally changed the grade of Brawley' street. It appears that as a part of the plans and specifications there was a blue-print tracing showing by a dotted line the then present elevation of the street, and by a continuous line the proposed elevation of the street to be constructed, and as a part of the tracing there was a profile showing the exact elevations of the various parts of the street, the per cent, of grade, and the grade at the intersection of Brawley and Elk streets. There was nothing in the records of the council to indicate any intention or purpose on the part of the common council to change the grade of Brawley street. If it was changed, it. was changed because the plans and specifications required the pavement to be constructed at a different grade than that established by the ordinance of 1898. Sub. (2), sec. 62.16, provides: “(a) The council shall have authority to establish the grade of all streets and alleys in the city, and to change and re-establish the same as it may deem expedient. Whenever it shall change or alter the permanently established grade of any street-any person thereby sustaining damages to his property on such street shall have a right to recover such damages in the manner set forth in this chapter. “(b) The grade of all streets shall be established and described, and the adoption of such grades and all alterations thereof shall be recorded by the city clerk. ...” It appears that the engineer, in the drafting- of the plans and specifications applicable to Brawley street, adopted a different datum than that upon which the grade of the streets was established by the ordinance of 1898. While it is possible by examination of the records and computations to discover the relation of the datum of the ordinance of 1898 to the datum upon which the plans and specifications [658] were based, it is not discernible by an inspection of the plans and specifications. The claim is made that by the adoption of the plans and specifications the grade of Brawley street was thereby changed. Apparently the council did not know that it had changed the grade of the street. It did not order the board of public works, under the provisions of sub. (6) of sec. 62.16, “to view the premises and determine the damages and benefits which will accrue to each parcel of real estate by such change or alteration of grade.” It did, however, direct the board of public works to view the premises and determine all the damages and benefits which will accrue to each parcel of real estate by the paving of the street. While the general charter law does not-provide how the power of the common council shall be exercised, whether by ordinance or resolution, there must, in order to effect so substantial a matter as a change in a grade of a street, be a reasonably clear exercise of the power, conferred upon the council in some way. It is apparent from the record that the council never attempted to change the grade of the street in the exercise of the power conferred upon it. What it did do was to authorize the construction of the improvement on a grade other than that duly established. The plaintiff was therefore entitled to recover any damage sustained by him by reason of the wrongful act of the city in constructing the improvement above that of the established grade. Drummond v. Eau Claire, 85 Wis. 556, 55 N. W. 1028. (3) There having been no change in'the established grade of the street, the provisions of sec. 62.16 are not applicable. The council having taken no steps to change the grade of Brawley street, there could have been no assessment of benefits and damages by the board of public works nor confirmation thereof by the council or any determination from which the plaintiff might have appealed. (4) While the damages appear to be high, the matter was carefully reviewed by the trial court, who was entirely familiar with the situation and the evidence, and we do not [659] feel that the determination of the jury so approved by the trial court should be disturbed. (5) Complaint is made because counsel for plaintiff in his argument to the jury contended that plaintiff was entitled to recover because the grade of Elk street would necessarily have to conform to the grade upon -which the permanent improvement of Brawley street was built and that that fact should be considered by the jury, the contention of the defendant city being that damages on that account could only be considered when Elk street was improved. It is conceded that the question, is not material in this case, -but we are asked to determine this question as a guide in future actions. This we cannot do. The court has power to declare the law in cases pending before it and has no power to decide cases not before it. By the Court. — Judgment affirmed.