Pittelkow v. Herman

Cassoday, 0. J.

The complaint in this case is substantially the same as in Pittelkow v. Milwaukee, ante, p. 651. In this case the want of view of the premises by the board of public .works, which is alleged in the complaint upon information and belief only, is expressly denied; and upon the motion for a temporary injunction it was, in effect,'made to .appear affirmatively that the several members of the board in a body proceeded to Hadley street, and viewed the street and premises fronting and abutting thereon from First street to Island avenue, for the purpose of considering the amount to be made chargeable against the several lots or pieces of land fronting on said street, and the benefits which, in their opinion, would actually accrue to the owner of the same by reason of the improvement of said street by grading and graveling the roadway, grading, curbing with stone, and planking the sidewalk, and paving the gutters, in pursuance of the resolution adopted by the common council June 11, 1894; that thereafter the board made its assessment of benefits and damages which the lots and parcels of land fronting on Hadley street between First street and Island avenue would derive or suffer from said proposed improvement, a copy of which said assessment is set forth in the complaint in this action; that said assessment was made upon an actual view of said premises, including the lots belonging to the plaintiff described in the complaint. Notwithstanding such showing, the city was, by order of the court, enjoined and restrained from selling the lots mentioned in the complaint for the tax therein mentioned, and from issuing any certificates of tax sale thereon; and the defendant Herman was thereby enjoined and restrained from selling or disposing of the certificates of the board of public worts by him owned and held, as alleged in the complaint. From that order the defendant Herman brings this appeal.

As indicated in the opinion filed in the other case, the only defect in the proceedings alleged in the complaint was the want of such view by the board of public works. In this case such allegation is not only denied, but clearly disproved.

By the Court.— For this reason, and the reasons given in the opinion in the other case, that portion of the order of the superior court of Milwaukee county appealed from by the defendant Herman is reversed, and the cause is remanded for further proceedings according to law.