#### City of Grand Rapids, Appellant, vs. Bogoger and wife, Respondents.

*January 13*

February *1, 1910.*

*Municipal corporations: Condemnation of land for street: Confirmation of assessment: Right to appeal: Reduction of award: Acceptance: Waiver.*

1. By confirming, pursuant to sec. 925 — 166, Stats. (1898), an assessment of damages by reason of the condemnation of land for a street, a city waives the objection that the award is excessive, and is therefore not a “party aggrieved” by such assessment, within the meaning of sec. 925 — 177, and cannot appeal therefrom.

2. Upon appeal by the landowner from such an assessment the award cannot be reduced, and acceptance, pending the appeal, of the amount awarded is not a waiver of the right to prosecute the appeal.

Appead from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.

*Affirmed.*

Eor the appellant the cause was submitted on the brief of *Geo. L. Williams,*attorney, and *Glenn H.*Williams, of counsel.

They cited, among other cases, *Pulling v. Columbia Co.*
      *5313 Wis. 337; *Fiedler v.*Howard, 99 Wis. 388, 75 N. W. 163; *Shcurp v. Houston,*92 Wis. -629, 66 N. W. 803; *Price v. Grzyll,*133 Wis. 623, 114 N. W. 100; *Drake v. Scheune-mann,*103 Wis. 458, 79 N. W. 749.

*D. I. Sicklesteel,*for tbe respondents,

cited *Alft v. Olinton-ville,*126 Wis. 334, 105 N. W. 561; *Haas v. Powers,*130 Wis. 406, 110 N. W. 205.

TimliN, J.

Tbe city of *Grand Rapids,*acting under secs. 925 — 155 and 925 — 171, Stats. (1898), condemned a strip of land owned by tbe respondents and twenty feet in width for tbe purpose of widening nn existing street. Tbe common council confirmed an award of damages in tbe sum of $4,500 in excess of benefits. Tbe respondents, being dissatisfied, appealed from this confirmation of tbe award to tbe circuit court. Pending this appeal they accepted a city order for $4,500 tendered by tbe city, and surrendered’ up possession of tbe twenty-foot strip. Tbe appeal was taken on October 15, 1908, and tbe tender by tbe appellant and acceptance of tbe money by respondents and tbe surrender of possession was on May 19,1909, while the appe'al was pending and before it came to trial.

Tbe appellant relies on *Pulling v. Columbia Co.*3 Wis. 337, in support of tbe proposition that by tbe acceptance of this sum respondents waived further right to prosecute tbe appeal. Tbe appellant’s counsel is correct in this contention if, upon tbe appeal pending, tbe circuit court could have reduced the award so confirmed below $4,500. Tbe respondents rely on tbe case of *Fiedler v. Howard,*99 Wis. 388, 75 N. W. 163, in support of their right to. accept the $4,500 and prosecute their appeal for tbe remainder of their damages, if any. Tbe respondents are right if tbe circuit court on this appeal bad no power to reduce the compensation and damages of tbe respondents below $4,500. Whether tbe award could be reduced on appeal is therefore tbe question for consideration.

Tbe appraisal and award is in thé first instance made by *532tbe board of public works. After a sentence of condemnation, wbicb merely finds that it is necessary to condemn the real estate in question for public use, the common council of the city is authorized to adopt a resolution directing the board of public works to make an assessment of damages by reason of such condemnation. “When such assessment shall have been made and reported to the council that body may, by resolution, cdnfirm the same or refer the matter back to the board ■for a new assessment or may, by resolution, abandon the condemnation proceeding.” Sec. 925 — 166, Stats. (1898). The city at this stage of the proceedings exercises its right to reject the award of the board of public works if it considers that award excessive. By proceeding to confirm that award the city waives such objection. The city is therefore not a party aggrieved by an assessment of the board of public works which it has confirmed. Sec. 925 — 111, Stats. (1898), provides that any party aggrieved by any assessment of damages may appeal to the circuit court therefrom within the time, in the manner, and upon the security prescribed on appeals from assessment of benefits and damages on account of public improvements'. The amount recovered by the appellant properly applicable in reduction of his special assessment for benefits, or the amount recovered by way of increase of damages, or for damages where none have been awarded, shall be paid by the city out of the proper fund. No provision is made for any reduction of the award of damages confirmed by the city, although it is provided that such appeal shall not affect any special tax levied on account of an excess of benefits over damages. Unless the city is a party aggrieved by an award by the board of public works which it has accepted and confirmed there is no right of appeal given to the city. This view is confirmed by the fact that the statute provides what shall be done in case of an increase of the damages, but makes no provision for the case of a reduction. In ease the benefit exceeded the damages a reduction of the damages on appeal *533•would be unavailing unless the benefit tax could be readjusted. But tbe statute declares this shall not be affected by the appeal.

The only question for trial on the appeal was-, therefore, what damages, if any, the plaintiff was entitled to over and above those confirmed by the city council. Under such circumstances the acceptance of the city order for $4,500, the amount of the award confirmed by the. council, did no-t waive the right of appeal.

*By the Court.*— -Judgment of the circuit court affirmed.