#### Henry, Appellant, vs. City of La Crosse and others, Respondents.

*March 16*

June *12, 1917.*

*Viaduct over railway tracks: Construction Toy order of railroad commission: When abutting owners entitled to damages: Street railway not an additional burden: Municipal corporations: Change of grade of street.*

The state railroad commission has power to order the construction of a viaduct by a railway company over its tracks, and such company has the right to construct it in compliance with such order.

Extension of the tracks of a street railway company over such viaduct and operation of its cars thereon do not constitute an additional burden entitling abutting property owners to damages.

A provision in the order of the commission to the effect that the city in which the viaduct was to be built should “assume responsibility for any alleged damage to adjacent property or business caused by the issuance or enforcement of this order, or by the proper prosecution of the work,” did not create or attempt to create any liability to abutting owners for change of grade, other than that provided by law.

Where a change of the grade of a street is made by authority of law and with due care the municipality making the change is not liable for consequential injury to abutting lots, unless expressly made so by statute or the constitution.

The grade of a street was established by city ordinance in 1883, and a viaduct was constructed over railway tracks in the street, but not at the exact grade then established. In 1913 the old viaduct was torn down and a new one was constructed, pursuant to an order of the railroad commission, at the grade established by the ordinance of 1883, which had never been changed and was at this time reaffirmed by ordinance. *Held,*that the new viaduct was built on a “permanently established grade,” within the meaning of sec. 925 — 172, Stats, (which section the city had in the meantime adopted), and- hence that there was no liability to abutting property owners although it was not built on the same grade as the old viaduct.

Appeal from a judgment of the circuit court for La Crosse eounty: E. C. Higbee, Circuit Judge.

*Affirmed.*

*626This is an appeal to tbe circuit court from tbe determination of tbe board of public works and tbe common council of tbe city of *La, Orosse*awarding damages to abutting owners on account of tbe construction of a viaduct over tbe tracks of tbe *Chicago, Milwaukee & St. Paul Railway Company*on Rose street in said city in accordance witb an order of tbe railroad commission of Wisconsin.

After tbe case was appealed to tbe circuit court tbe *Chicago, Milwaukee & St. Paul Railway Company*and tbe *Wisconsin Railway, Light and Power Company,*owner of tbe street railway, were impleaded as defendants. There were general objections to tbe jurisdiction of tbe court. Tbe pleadings were changed and amended so as to charge one or all of„the defendants in tbe matter witb damages to abutting owners. Tbe question of plaintiff’s damages was submitted to tbe jury and they found $350.

Tbe court found as follows:

“(1) That tbe city of *La Crosse*is a municipal corporation and that tbe *Chicago, Milwaukee & St. Paul Railway Company*and the *Wisconsin Railway, Light and Power Company*are railroad corporations organized and operating under tbe laws of tbe state of Wisconsin.

“(2) That Rose street is a public street in tbe city of *La Crosse,*Wisconsin, running north and south in tbe city of *Lua Crosse,*and that tbe *Chicago, Milwaukee & St. Paul Rail-vjay Company*maintains and operates a system of main and side tracks through this city, intersecting Rose street.

“(3) That in the-year of 1883, because of tbe danger incident to tbe crossing of defendant’s tracks witb Rose street at grade, tbe city of *La Crosse*entered into an agreement witb the defendant *Chicago, Milwaukee & St. Paul Railway Company*by which said company undertook to erect and maintain a viaduct over its tracks at Rose street upon condition that tbe city construct and maintain tbe approaches thereto, and pursuant to such agreement a viaduct was in fact so constructed.

• “(4) That preliminary to tbe construction of such viaduct the city of *La Crosse,*by an ordinance duly adopted, established tbe grade upon Rose street from Gould street on *the**627south to Hagar street on the north, in terms and figures as follows, to wit:

Center line of Gould street. 48 feet

Center line of Island street. 64.10 feet

Sixteen feet south of south line of right of way of Chi-.

cago, Milwaukee & St. Paul Railway. 69.19 feet

Sixteen feet north of line of right of way of Chicago, Milwaukee & St. Paul Railway . 69.19 feet

Center of Hagar street .'. 53.50 feet

Center line of St. Andrew street . 66.25 feet

“(5) That upon the construction of such viaduct in 1883 the approaches thereto were not in fact built upon the grade so established by the city of *La*Crosse, hut upon a short, sharp grade, leading to the floor of such viaduct.

. “(6) That in 1912 such original viaduct became dangerous

and unsafe for public travel, and by order of the railroad commission of Wisconsin it was condemned and Rose street closed to travel, but thereafter in November, 1913, the railroad commission ordered the construction of a new viaduct, in accordance with plans and specifications approved by the railroad commission, which apportioned the expense of construction between the parties defendant as follows:

“Sixty per cent, to be paid by the Chicago, *Milwaukee & St. Paul Railroad Company;*

“Twenty-five per cent, to be paid by the city of *La Crosse;*“Fifteen per cent, to be paid by the *Wisconsin*Railway, *.Light and Power Company.*

*■*“(7) That such new viaduct and its approaches were thereupon constructed by the defendant Chicago, *Milwaukee & St. Paul Railway*Company, in accordance with said plans and specifications, and the approaches thereto, pursuant to said plans, were built upon the grades established for Rose street by the city of *La Crosse*in 1882, as hereinabove found, except that such approaches do not occupy the entire width of the street, but leave a roadway nine feet wide, level with the abutting property, on each side of said approaches between it and the curbs of Rose street.

“(8) That by direction of the railroad commission of Wisconsin in its order of November, 1913, the city of *La Crosse*instituted proceedings to assess the damages claimed to result to abutting property by reason of the building of such viaduct, and'although said city disclaimed any liability it conducted *628proceedings to determine such, damages as for a change of the grade of Rose street at the expense of abutting property, as a result of which amounts were conditionally allowed to the property owners by the city of *La Grosse,*and from the particular conditional award to the' plaintiff herein said plaintiff, *Neiiie Henry,*has appealed to this court.

“(9) That Rose street has never been improved at the expense of abutting property.

“(10) That at no time prior to the construction of the new viaduct in 1913 has Rose street been graded to the established grade.”

The court concluded: -

“'(1) That by the construction of the new viaduct the grade at Rose street has not been changed.

“(2) That the defendants are entitled to judgment in their favor upon the merits of this action, notwithstanding the verdict of the jury.”

Judgment was entered accordingly, from which this appeal was taken.

*Frank Winter*of La Crosse, for the appellant.

*Jesse E. Higbee*of La Crosse, for the respondent *City of La Grosse.*

For the respondent *Chicago, Milwaukee & St. Paul Railway Company*there was a brief by *Paul W. Mahoney*of La Crosse and *O. H. Van Alstine*and *PI. J. Killilea,*both of Milwaukee, and oral argument by *Mr. Mahoney.*

For the respondent *Wisconsin Railway, Light and Power Company*there was a brief by *George IP. Gordon, Law & Gordon*of La Crosse, and oral argument by *George H. Gordon.*

The following opinion was filed April 4, 1917:

Kerwin, J.

It appears without dispute that the railroad of the defendant *Chicago, Milwaukee & St. Paul Railwa/y Company*was constructed at grade across Rose street in the city of *La Crosse*in 1856. Mill street is parallel and ad*629jacent to Rose street. Each of these streets is and was for a long time prior to 1882 covered by a network of railroad tracks. In 1883 a viaduct was built by authority of law at the Rose-street crossing of defendant *Chicago, Milwaukee & St. Paul Railway Company.*So for more than thirty years prior to the building of the new viaduct in 1913 there had been a separation of grades at Rose street, the floor of the viaduct being about twenty-two feet above the level of the railroad tracks and reached by abrupt paved approaches in Rose street. In 1913, on account of accidents at the Mill-street grade crossing, the railroad commission of Wisconsin duly ordered that the street railway tracks be removed from Mill to Rose street; that a new viaduct be constructed in place of the old Rose-street timber structure and the street railway tracks built over it. The order of the railroad commission further provided that the defendant *Chicago, Milwaukee & St. Paul Railway Company*should construct the new viaduct in accordance with approved plans. The approaches to the floor of the new viaduct are less abrupt and longer than those' of the old viaduct, although the floor of the new viaduct is on the same level as that of the old structure. .

The order of the railroad commission provided for the apportionment of the expense of construction and maintenance of the new viaduct, and pursuant to this order the defendant *Chicago, Mikvaukee & St. Paul Railway Company*tore down the old structure and erected the new with longer, paved approaches. A nine-foot roadway is left on each side of the approaches at the same level as the abutting property. The approaches are claimed by plaintiff to be an additional burden.

The railroad commission ordered that the defendant city pay damages which might result from the work of the new structure. While the city disclaimed any liability for damage to abutting owners, it went through the form of ascertaining the same, but expressly refused to pay any damages *630to abutting owners on the ground, among others, that the building of the viaduct did not result in the change of a permanently established grade.

No part of the expense of the viaduct was charged to abutting owners. The grade was' established by- ordinance in 1883 when the first viaduct was built and never changed, as found.by the court below. All the findings are well supported, and we shall spend no time discussing the evidence.

The main question involved is whether any of the defendants is liable for damages to abutting property on account of the construction of the viaduct.

The court below held that, since there was no change of an established grade by the construction of the viaduct, the abutting owners were not entitled to damages against any of defendants.

The railroad commission of the state of Wisconsin had power to order the construction of the viaduct and the defendant *Chicago, Milwauicee & St. Paul Railway Company*the right to construct it in compliance with the order of the railroad commission. *Milwaukee v. Railroad Comm.*162 Wis. 127, 155 N. W. 948. The extension of the track of defendant *Wisconsin Railway, Light and Power Company*over the right of way and operation of cars thereon was not an additional burden, hence did not entitle the abutting own- • ers to damages. *La Crosse City R. Co. v. Higbee,*107 Wis. 389, 83 N. W. 701; *Hobart v. Milwaukee City R. Co.*27 Wis. 194; *Younkin v. Milwaukee L., H. & T. Co.*120 Wis. 477, 98 N. W. 215.

It is a well settled rule that where a change of grade is made by authority of law and with due care the municipality making the change is not liable for consequential injury to abutting lots, unless expressly made so by statute or the constitution. *Drummond v. Pau Claire,*85 Wis. 556, 55 N. W. 1028; *Colclough v. Milwaukee,*92 Wis. 182, 65 N. W. 1039; *631*Harrison v. Milwaukee Co.*51 Wis. 645, 8 N. W. 731; *Liermann v.*Milwaukee, 132 Wis. 628, 113 N. W. 65.

It is clear that the provisions in the order of the railroad commission providing for the building of the viaduct to the effect that the defendant city should “assume responsibility for any alleged damage to adjacent property or business caused by the issuance or enforcement of this order, or, by the proper prosecution of the work,” did not create or attempt to create any liability to abutting owners for change of grade other than that provided by law.

In 1883, when the grade of Rose street was established, the city of *La Grosse*was operating under a special charter (ch. 135, Laws 1876), which contained no provision for payment of damages to owners of abutting property on account of change of grade of streets, and there was no general statute at that time imposing such liability. So at the time the grade of Rose street was established in 1883 the city had the right to change or alter any prior established grade without compensation to abutting owners. *Harrison v. Milwaukee Co., supra; Colclough v.*Milwaukee, *supra.*

It is true that in 1901 the city of *La Grosse*adopted secs. 925 — 172 and 925 — 178, Stats., relating to establishing grades, but the evidence shows conclusively, and the court below found, that the new viaduct was built on the grade established by the ordinance of 1883, hence there was no change of grade after 1883.

Some argument is made that the so-called “paper grade” made by the ordinance of 1883 was not a “permanently established grade” within the meaning of sec. 925 — 172, therefore a permanently established grade, within the meaning of the statute, was not established until the new viaduct was built. This contention would lead to the conclusion that there was at no time a change of the established grade.

The so-called “paper grade” was definitely established by *632ordinance of the common council, duly passed at the time the old viaduct was constructed, and established the grade upon Rose street from Gould street on the south to Hagar street on the north. But, as found hy the court, Rose street at no time prior to the construction of the new viaduct in 1913 was graded to the established grade at all points. The ordinance passed at the time the new viaduct was built reaffirmed the grade as established by the ordinance passed when the old viaduct was built, and the new viaduct was built according to such grade.

It follows that upon no theory of the case was there a change of the established grade, hence no liability on the part of any of the defendants to abutting owners.

*By the Court.-*— The judgment is affirmed.

A motion for a rehearing was denied, with $25 costs, on June 12, 1917.