#### Filer & Stowell Company, Respondent, vs. City of Milwaukee, Appellant.

May *2, 1911.*

*Municipal corporations: Streets: Change of grade: Assessment of damages: Milwaukee city charter.*

Under tlie Milwaukee city charter the established grade of a street *cannot legally be*changed, as to the owner *of any lot*affected who does not petition for the change, without proceedings for-determining damages and benefits; and in case of a change being otherwise made the city is liable in an action for tort. Secs. 1210d and 1210e, Stats. (Supp. 1906), do not abolish said condition precedent to a lawful change of grade.

Appeal from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

Action to recover damages for an alleged unauthorized change of grade.

Plaintiff pleaded ownership of a city lot abutting on Becher street in the city of *Milwaukee,*Wisconsin, due establishment of the grade of such street in 187 6, improvement of the street according to such grade long prior to 1909, change of. such grade in 1909, construction of the street in front of said lot accordingly, to his damage in respect to said lot in the sum of $20,000, and that such change and reconstruction was with-: out his consent or any proceedings having been had to determine the benefits or damages caused to said lot by such change and reconstruction or compensation having been offered to-him for the injury.

The defendant demurred to the complaint for insufficiency. It was overruled and defendant appealed.

Eor the appellant there was a brief by *Darnel Moan,*city attorney, and *Clifton Williams,*special assistant city attorney, and oral argument by *Mr. Williams.*

Eor the respondent there was a brief by *Miller, Made & Fairchild,*and oral argument by *M. S'. Mack.*

*222MaRshall, J.

The order appealed from must be affirmed. The main contention of appellant is that the charter of *Mil-wauhee*authorizes the municipality to change the grade of a street after such grade has been once fixed and the street improved accordingly, and reconstruct the way without making •any assessment of benefits and damages to abutting lots and regardless of whether such damages exceed the benefits, so long as the change is made without charging any part of the ■cost to such abutting property. Counsel present an ingenious argument on this point, which we do not think advisable to review in detail.

Although the charter has been as now some forty years, it is confessed' by counsel that no one has heretofore discovered that under it the municipality has the power contended for now. Practical construction for that length of time, in a situation open for construction, which is the most favorable view that can be taken of the matter for appellant, could not be violated lightly, if at all.

As we view the city charter of *Milwaulcee*it provides, in unmistakable language, that, in case of a change of grade, as in this case, any abutting lotowner whose premises are injuriously. affected thereby is entitled to' compensation therefor. The charter provides at sec. 8, ch. VII:

> “In all cases in which the grade of any street has been .permanently established by ordinance since February 20, 1852, or shall hereafter be so established, and after such permanent establishment thereof, and after such street shall have been actually graded to such established grade, the grade •so established has been or shall be altered by the city, the •owner of any lot or parcel of land which may be affected or injured in consequence of such alteration of grade, shall be •entitled to compensation therefor; . . .”

In connection with that are provisions for determining the •damages and benefits and for payment of the excess of the former over the latter, save and except as to petitioners for ’the change, they to be regarded as having waived any claim.

*223As counsel for respondent contend, it was early beld tbat ■the right of a lotowner circumstanced as respondent is, under the *Milwaukee*charter, is as claimed in the complaint, — that the grade cannot be legally changed without proceedings under the charter for determining the damages as well as benefits, and that in case of a change being otherwise made, the •city is liable in an action for damages for a tortious wrong. *Dore v.*Milwaukee, 42 Wis. 108; *Liebermann v. Milwaukee,*89 Wis. 336, 61 N. W. 1112. The charter in respect to the matter is the same now as when those cases were decided. What was said there has not been judicially modified in any ■way. Tested thereby the complaint clearly states a cause of .action. It pleads ownership of the lot, original establishment ■of the grade of the street, improvement of the way accordingly, and change of the grade and reconstruction to plaintiff’s ■damage without proceedings for the assessment of benefits and •damages, — a clear usurpation of power.

The point is made that secs. 1210¿ and 1210s of the statutes (Supp. 1906) abolish the aforementioned conditions precedent to a valid change of grade and reconstruction of a street in accordance therewith. The contention is without merit. Such sections deal with void assessments, — ineffective attempts to comply with the law. Here there was no attempt whatever. The provisions of the charter in respect to making an assessment were wholly ignored.

*By the Court.*— The order is affirmed.

*221*April 8*—