ABBOT v. CITY OF MILWAUKEE et al., 236 F. 671

MACK, Circuit Judge (after stating the facts as above). 1.

Chapter ¡7, § 8, is entirely inapplicable to this case. The resolution of 1912 did not change the established grades. It expressly directed the paving to be done in accordance with the grade established in 1873. That the roadway was then below the established grade, and had been in that condition at least since 1879, is established by the evidence.

But the evidence fails to establish that the work done in 1874 was not properly done; that the roadway was not then graveled up to grade.On the contrary, the only direct evidence is the certificate of the assistant city engineer that the contract had been complied with. The trial judge was justified under the evidence in concluding that in some way, not explained, this street had sunk between 1874 and 1879.

But even assuming that the work was improperly performed in 1874, SO' that the roadway was then lower than the legal grade and that the assessment was paid by the then owner in ignorance thereof, in our judgment, the acceptance of that work by the city engineer in no manner operated expressly or by estoppel to change the legally established grade and to fix it at the actual height of the roadway. No evidence of aiiy affirmative act, in recognition of such a change, has been offered.

Even such incidental repairs as were made from time to time are not shown to have been made by or pursuant to the orders of the city council or officials, or to have been based upon any recognition of any other grade than that specified in the ordinance of 1873 as the legally established grade of the street.

When plaintiff’s predecessor extended his building in 1879 making the floor level with the street as it then was, and when, in the later ’80’s, in replacing the worn-out floor, he again raised it to the level of the street, which had theretofore been filled in some two feet, he did not act on any assertion of the city, either express or implied, that the street at either time was still at the established grade. The very change of two feet amply demonstrated that, either at one or the other time, or at both, the street no longer conformed thereto.

That the payment of the 1874 assessment does not estop plaintiff from asserting that the present pavement resulted in a change of grade may be conceded. A regrading, however, not to effectuate a change in the legal grade, hut to re-establish it after the act of man or of nature has changed it in fact, gives no right to damages under

chapter 7, § 8, of the charter. 2.

Chapter 7, § 34, which in effect modifies and amends

section 2, is likewise inapplicable. The partial exemption from the excess cost above $3 per square yard for a permanent paving is granted only after an aggregate of $3 shall have been paid for street pavements. Obviously this does not limit the assessment for the original paving to $3 plus one-half the excess cost. It clearly applies only to a later permanent paving. Furthermore, the $3 must have been paid for paving; not necessarily for a permanent paving (Weise v. Green Bay, 143 Wis. 198, 126 N. W. 681; Hoefer v. Milwaukee, 155 Wis. 83, 143 N. W. 1038), but nevertheless paving, in the sense in which this word is used in

chapter 7, § 2, as distinguished from planking or graveling. Therefore the payment made in 1874 for graveling this street, the only payment for any improvement of Erie street so far as this record shows, cannot invalidate or in any manner affect the assessment for the 1912 improvement. 3. To prove that the commissioner acted arbitrarily in assessing the benefits, reliance is placed mainly upon the fact that the record shows substantial equality between the benefit and the cost of the work.

This, however, by no means demonstrates either that the property was not fully benefited to the extent of the cost, or that the commissioner, disregarding all other considerations, arbitrarily regarded cost and benefits as synonymous. Without detailing the evidence, we are of opinion that the trial judge, who heard the witnesses and viewed the property, was fully justified in his conclusion that the commissioner’s action was within his jurisdiction and not arbitrary. As to damages, clearly none were caused by the permanent pavement as such.

The only possible damages would be either the expense of conforming the building to the level of the re-established street grade or the capitalized loss in running the business with the building unchanged.

In our judgment, the commissioner did not act arbitrarily in disregarding this loss and in assessing “no damages.” Under the charter, damages are limited to those due to “any injury which, in the opinion of the commissioner may result from such improvement.” While damages due to the injuries caused by a change in tire legal grade must be allowed to the abutting owner, the expense to which he may be put in bringing his building up to the level of the legally established street grade, necessitated, not by a change in the legal grade, but by its restoration after the street had fallen to the level of the building, may very properly have been deemed by the commissioner as damnum absque injuria. 4.

Under

section 7 of the charter, the benefits which will accrue to the owner of the several -lots or pieces of land are to be considered by the commissioner; the amount of benefit, which the lots or pieces of land will severally derive from the improvement is to be assessed against them. Not only does this

section provide for assessing either lots or pieces of land, but it specifically directs the commissioner to consider the benefits to the owner. In our judgment, this direction to the commissioner to take into consideration the ownership of the property authorizes him to look to the unitary character of the several lots belonging to one owner and actually used by him as one piece of land, and if he deems it best, under all of the circumstances, to assess against the entire piece the benefits accruing to it as a unit.

If°a subdivided piece of land, owned by one person and used by him as a single piece, would be benefited by an improvement either to a greater or to a lesser extent than would tire several lots, taken separately, no reason is apparent why the actual situation should be disregarded. Clearly the language of the Wisconsin statute permits of this just result. See, too, Schmidt v. City of Milwaukee, 149 Wis. 367, 135 N. W. 883. 5.

If the •benefits had been assessed separately against each lot, there would be much force in the contention that the taxes could not be levied against the entire piece of land as a unit, because of the provision that a special assessment must not exceed either the benefit to the piece assessed or the cost of so much of the improvement as it abuts. This is well illustrated by appellant’s example of lot 1 benefited $800; lot 2, $200; tax of $1,000 levied against both lots jointly; cost of improvement in front of lot 1, $400; in front of lot 2, $600.

The limit of the assessment would be $400 as to lot 1 and $200 as to lot 2. The $1,000 would be an illegal assessment. The converse, however, as in this case, is not true. If, as we have just held, the benefits were properly assessed to the piece of land as a unit, because it belonged to and was used as such by one owner, the benefits, not to each lot, but to the piece as a whole, fixed the maximum assessment. But the cost of the work in front of each lot could be, and in this case was, determined.

No possible harm can result to the owner by dividing the total tax, which was less than the benefits, between the several lots, apportioning, however, to each of them an amount in no case greater than the cost of the abutting

section of the improvement. In the absence of a specific statutory provision, requiring the tax to be levied against the property exactly as described in the benefit assessment, the method here pursued cannot be declared illegal or arbitrary. Decree affirmed.