Holton v. City of Milwaukee , 31 Wis. 27 ( 1872 )

Drxow, C. J.

The questions presented in this case depend wholly upon the proper construction and effect of certain provisions in the charter of the city of Milwaukee, regulating the manner of estimating the damages of the owner, and appraising the value of land taken in the laying out and opening of streets, and also the manner of making assessments to defray the cost and expense of grading, graveling, planking or paving streets in that city; which provisions in the charter have been adopted and made applicable to the work of laying out, establishing and constructing a system of canals, water channels or slips in the valley of the Menomonee river, in the city of Milwaukee, as provided for by chapter 91, private and local laws of 1869, and the amendments thereto, found in chapter 401 of the same laws, entitled “an act establishing a board of public works in the city of Milwaukee,” approved March 10, 1869. The sections of the latter act to which reference is more particularly made, are 21 to 25, inclusive, and section 28. Section 2 of chapter, 91 declares the canals, water channels and slips, fixed, laid out and established in pursuance of that act, to be public highways, and subject to the laws and regulations applicable thereto in the city of Milwaukee. Section 4 enacts, that when it is necessary to take land for the purposes of the act, the common council, in taking the same, shall proceed in the same manner as provided by the charter of the city for the laying out and widening of streets in said city, except that the application of the commissioners shall take the place of the petition of freeholders. Section 5 provides, that whenever the commissioners shall order the construction of any portion of the canals, water channels or slips,' or docking or dredging of the river, as provided by the act, they shall proceed as provided by law for the street commissioners in grading and graveling streets, with the same right of assessing benefits and damages on the adjoining property.

The provisions of the charter regulating the manner of appraising value and estimating damages where land is taken for streets, which appraisement and estimate is made by a jury of twelve men, are contained in sections 11 and 12 of chapter VI. of the charter (being subchapter VI. of chapter 56, Laws of 1852), and read as follows:

“ Sec. 11. The said jurors, within the time limited, shall view and examine the premises proposed to be taken, and all such other premises as will, in their 'judgment, be injured or benefited thereby. After hearing such testimony as may be offered by any party interested, and which shall be reduced to writing by one of said jurors, they shall proceed to make their assessment, and determine and appraise, to the owner or owners, the value of the real estate so proposed to be taken, and the injury arising to them respectively, in consequence of the taking thereof, which shall be awarded to such owners respectively as damages, after making due allowance therefrom for any benefit which such owners may respectively derive from such improvement. * * *

“ Sec. 12. If the damage to any person be greater than the benefits received, or if the benefit be greater than the damages, in either case the jurors shall strike a balance, and carry the difference forward to a column, so that the assessment will show what amount is to be received or paid by such owner or owners respectively, and the difference only shall, in any case, be collectible of them, or payable to them. ”

Section 18 of the same chapter declares, that the damages assessed shall be paid, or tendered, or deposited, as therein required, within six months from the confirmation of the assessment and the report of the jury ; and if they are not so paid, tendered or deposited, all the proceedings in any such case shall be void.

The provisions of the charter declaring how the expense of tire grading, graveling, etc., of streets shall be paid, are found in section 5 of chapter VIL, and are in these words: “The cost and expense of opening, grading, graveling, planking or paving streets and alleys to the centre thereof, shall be chargeable to and payable by the lots fronting on such street or alley. ” The charter contains some further provisions pertaining to particular cases, not required to be noticed here. Sec. 21 of the act establishing a board of public works, chapter 401, private and local laws of 1869, above referred to, reads as follows : “ The grading, graveling, planking, macadamizing or paving to the centre of any street or alley, and the grading, graveling, planking or paving of any sidewalks, and the paving of any gutter, shall be chargeable to or payable by the lots fronting or abutting upon such street, alley, sidewalk or gutter, not exceeding the amount to which such grading, graveling, macadamizing, planking or paving shall be adjudged by said board to benefit such lots. ” Section 24 provides how the damages and benefits shall be estimated and determined.

The foregoing are all the provisions in tbe charter or elsewhere, necessary to be considered ; and, as argued by counsel for the city, they show very clearly that the proceedings for determining the value and estimating the damages or benefits when land is proposed to be taken for streets or other public uses, and the proceeding for estimating the damages and benefits, and for making assessments and collections to improve the streets or other highways when once laid out and established, are entirely distinct and separate. The process of laying out streets is distinct and complete in itself, and so is the process of providing for their improvement.

This appeal originated in a proceeding for the taking of a portion of the plaintiff’s land for the purpose of widening the navigable channel of the Menomonee river, and is of the same kind as where land is taken, or proposed to be, for the purpose of a street. The plaintiff took his appeal from the original assessment of damages and benefits, to the circuit court, and the question which arose in that court, and is to be decided by this, is, whether, on such assessment, the plaintiff is entitled to have taken into consideration, as a proper element of damages in his favor, the costs and expenses to which he will be subjected in dredging and removing the soil of that part of the land taken, so as to actually widen the navigable channel of the river as contemplated by the board of public works, and give to his remaining land the same water front and access to the river which now exists. It is urged that by taking the strip of land nearest the river, the plaintiff is deprived of his water front and access to the river, which is necessarily a great injury, and that when damages and benefits come to be assessed for dredging and widening, the pretext will be to charge him with large benefits for restoring such water front or access. The claim is, that he gets nothing for having his land separated or cut off from navigable water, for which it now is, or heretofore has been, chiefly valuable; and that when such advantage comes to be restored, by the dredging and widening, he will be largely, if not wholly, charged with the cost and expense, under the guise of benefits received. This, it is said, will be a clear loss, and to avoid it, or remedy the supposed wrong, the proposition is to have the cost and expense of dredging and widening, as nearly as the same can be now ascertained, allowed to him as damages-in this proceeding to acquire title to the land.

If the board of public works proposed to take the land for any other purpose than for widening the river and enlarging its capacity for navigation, as, for example, for a common road or street along the bank of the river, which would permanently deprive the plaintiff of access to its navigable waters, and the profitable use of his remaining land as he now uses or may use the land taken bordering on the river, then, undoubtedly, such deprivation would constitute a most important item of damage to be estimated in the plaintiff’s favor. But as the proposed public use here, and character of the improvement, are of an entirely different kind, and one which does not contemplate a destruction of the plaintiff’s water front, but a mere change in the line or location of it, and which is not intended to deprive him or his remaining land of any of the benefits of full and free access to navigable water, as such access now exists, it is not easy to see how this temporary separation of his remaining land from navigable water, which must necessarily .take place in the process of laying out and preparing for the improvement, should constitute any element of injury, or circumstance to be considered in estimating the damages sustained by reason of the taking and appropriation. In such case, the only legitimate and proper subjects of consideration, according to the rules prescribed by the charter and by law, would seem to be those submitted by the court to the jury on the trial below. The plaintiff owned the land upon one side of the river, of certain navigable capacity, but less, it is believed, than the exigencies of trade and commerce demand at that place. It is proposed by the board of public works, acting under authority of law, to enlarge the river or widen the navigable channel so as to meet the requirements of the public. To make this improvement, and increase the capacity and facilities for navigation to the extent proposed, it becomes necessary to take a portion of the plaintiff’s land. In determining the compensation to be made for the land (for it cannot be taken without compensation), the jury are first to ascertain and fix its value, and allow the same, and then to estimate or assess the benefits or damages, if any, to the remaining land or property of the plaintiff, which will result from the improvement when made. It may be that increasing the navigable capacity of the river as proposed will very greatly enhance the value of the adjoining property still owned by the plaintiff, or the part of his land not taken. If the jury find benefits thus received, they are to be deducted from the value of the land taken, and a balance struck; but if, on the contrary, they find damages, these are to be added to the value. If the jury find benefits in excess of the value of the land taken, the owner becomes debtor to the public for such excess, and must pay the same. Such is the system which has been provided by law for making compensation for lands taken for public use as streets and highways in the city of Milwaukee. As lands cannot be so taken and appropriated without compensation made to the owners, the assessments for benefits received are no more than a mode or species of taxation to provide or secure funds with which to make such compensation. The principle of such taxation is, that the owners whose property is specially or peculiarly benefited bjr the laying out or opening of streets or highways, should contribute the expense, or be taxed to make the requisite compensation; and as the party whose land is taken is equally within reach and operation of the principle with other owners, it may frequently happen that he may be without any direct pecuniary compensation at all, and sometimes he may even be required to contribute in money beyond the value of his land taken. The appraisement of value and assessment of damages and benefits is doing that by one process or proceeding which otherwise might have constituted two: first, an appraisement of value and estimate of damages to the owner whose land is taken; and then an assessment of benefits as a means of paying the value and damages; which latter would be a mere tax, and of course might fall on the owner whose land was taken, in an amount equal to or in excess of the value and damages to which he might be entitled. It would be and is a tax levied on the same principle as the taxes or assessments for the grading, graveling or other improvements of streets, as provided by the charter and the amendment contained in the act establishing the board of public works. This mode of taxation or special assessment for the grading and improving of streets has received the sanction of this court, and been held, both here and elsewhere, unanimously we believe, not to be subject to any valid constitutional objection.

The principles underlying taxation of this kind- — the proposition that it is taxation, or an exercise of the taxing power, where benefits are deducted, allowed or charged in proceedings like the present, and the conclusion that there exists no valid legal or constitutional objection, are most fully and ably examined and sustained in the opinion of the supreme court of Connecticut, by Hinman, J., in Nichols v. Bridgeport, 23 Conn., 189. The charter of the city of Bridgeport contained a similar provision, where land was taken for the purposes of streets, or highways; and the question arose upon its validity with re spect to the constitutional provision that the property of no person shall be taken for public use without just compensation therefor. Two propositions were discussed and decided by the court: first, whether the compensation could be paid by benefits, or the benefits offset to the value of the land taken, so that the owner would receive no money consideration or other payment; and second, whether he could be charged for benefits over and above the value of the land taken, and taxed or required by law to pay for the same. Both propositions were held ia tbe affirmative. Ia that case tbe land was not only taken without compensation, except in tbe benefit received by tbe' owner, but be was assessed and compelled, in addition, to pay tbe sum of six hundred dollars, as for a benefit he bad received by tbe opening and extension of tbe street. Speaking of the first proposition, tbe court says: “It is obvious, that in point of fact tbe plaintiff’s land might be so situated as to be greatly benefited by tbe opening of tbe new street through it; and while it is true that there is' no power, and ought to be none, in tbe government, to thrust a benefit on an individual, and then compel him to pay for it, as a mere abstract proposition, yet we think it would be a perversion of tbe constitutional provision in respect to compensation for property taken for public use, to bold that tbe government must, in all cases, pay for the property taken irrespective of tbe local and peculiar benefit which tbe party receives thereby. While it is unjust that property should be taken for public use wdtbout compensation, it is equally so that an individual should be paid for a benefit be has received by a public improvement, whether it is thrust upon him or not. Public improvements are not made at the call of any single individual, nor are they denied because one or more individuals, whatever may be their interest in regard to them, may feel aggrieved by them; but they are made because the public require and need them; and when so required, individuals who are very much benefited by them ought surely to rest satisfied with them, without tenaciously insisting upon compensation for these benefits.”

And again, in the discussion of the second proposition, as to the right to charge and compel payment by the owner as for benefits received beyond the value of his land taken, the following language occurs: “It is said that it takes the property of individuals, that is, their money, for public use, without any compensation therefor. This is not so, either in theory or in fact. If the assessment has been truly and justly made, the fact must be regularly ascertained to be, what the theory of the proceeding supposes it to be, viz., tbat the party whose money is taken, is locally and peculiarly benefited, over and beyond the ordinary benefit which, as one of the community, he receives in all public improvements, to the" precise extent of the assessment. It is no answer to this to say that the power may be abused; that is true of every power; and whether this particular power is so liable to be abused as to make it improper that it should be vested in the city corporations, is a matter of which the legislature must be the sole judge. * * * Prom the very nature of the subject, the power of taxation is an arbitrary power, which, when exercised by the government itself, is only limited by the discretion of the legislature, and when exercised by subordinate bodies, is limited to the objects for which the legislature has seen fit to authorize it to be exercised, and by such restrictions as the legislature has seen fit to prescribe; unless, indeed, it is further limited by some constitutional provision.” The opinion then proceeds to contrast the merits of this system of special assessments for the opening and improvement of streets and highways, with other systems or modes of taxation for the same purposes, and to show that it is as equitable as any, and concludes as follows: “But, as the constitution is imperative, that private property cannot be taken without just compensation being made therefor, it follows, that the estimated benefits must be considered and treated as the compensation for the land taken, and the only compensation to which the party is entitled. This, however, is, in effect, but one way of taxing an individual, peculiarly benefited by the laying out of a highway, for a portion, and it may be only a portion, of his just share of the whole tax, for the public im- . provement. If you can, in this way, tax one individual for the whole or a part of his share of the public burden, it seems to follow that you can, for the same reason and on the same ground, viz., the special or peculiar benefit he has received, or is to receive, by the improvement, tax every other individual who is similarly situated. And if you can tax him to the extent of tbe full value of tbe land actually taken, there is no reason that will limit tbe tax to that precise amount, orto any amount, short of the full value of the benefit he receives, provided all others similarly situated are taxed proportionably.”

These quotations, liberally made, clearly show the nature of these special assessments or charges and deductions for benefits received, and correctly state the principles upon which they are sustained. And to the same effect, see Washington Avenue, 69 Pa. St., 358 to 361.

Now, where the statutes provide, as in this case, distinct proceedings for laying out streets and acquiring the right of way, and for separate assessments for benefits to make compensation, and then again, other distinct process or proceedings and assessment of benefits in order to improve the streets when laid out, it would seem to be an entire departure from and overthrow of the system, to hold that the assessment made or to be made against the owner in the latter proceeding as for a benefit, might be taken into account and credited or allowed in his favor as a damage in the former. The assessment in the latter as for benefits beyond any damages sustained, is a tax or public burden lawfully imposed on the individual. It is so in theory as well as in fact in both proceedings. It is difficult to perceive how a party can suffer that as a damage which is lawfully imposed upon him or his property as a tax or public burden, in the sense that he may recover it back from or have it’ allowed to him by the public in the same or any other proceeding. The benefits charged, or to be charged, to the plaintiff for dredging and actually widening the river, or so as to cause the same to be done, are but a tax. They are, therefore, in legal contemplation, no damage. If, instead of special assessments for benefits, in order to widen and improve the navigation of the river, the system was a general tax upon the city or all the property in it, the plaintiff would of course have no such cause of damage or injury as is now complained of, unless, indeed, it should be that his • proportion of the general tax, as near as might be, should be allowed and credited to him as an item of damage, which would hardly be seriously proposed. The claim now made has no better foundation in law than such a claim would have. It differs in amount, but not in kind. It is of the very same nature, and cannot be sustained. Let us suppose, for example, instead of the present proceeding, it had been one to take other land of the plaintiff for the purpose of a street, which street, it was known, was soon to be graded, graveled, planked or paved at a very considerable expense, all or the most of which would, under the system of taxation or assessment adopted, fall upon the plaintiff as the owner of the property fronting or abutting on the street; could the plaintiff, in such case, have had the expense, so to be incurred, allowed in his favor as damages ? Could he take out of the public treasury as damages, in one proceeding or with one hand, what he would be obliged to put in as a tax in the other proceeding or with the other hand, and so escape taxation entirely? We think, for the reasons above given, he could not, and consequently that there was no error in the proceedings or trial which resulted in the verdict and judgment in this case.

The direction of the circuit court, that no execution issue upon the judgment rendered in favor of the plaintiff until the further order of the court, is of doubtful propriety. We do not say that the court had no power to make the order under the circumstances, nor do we direct the order to be vacated. It may be safely left to that court to vacate the order, which will undoubtedly be done, on application of the plaintiff, unless the amount of the judgment for damages and costs, with interest, is sooner paid to the plaintiff by the city.

By the Court — -Judgment affirmed.

A motion for a rehearing was denied at the January term, 1872.