#### Dahlman and another, Respondents, vs. City of Milwaukee, Appellant.

*January 8*—

April *30, 1907.*

(1-4) *Municipal corporations: Improvements: Invalid assessments: Reassessment: Statutes construed: Milwaukee: Constitutional law: Tested rights: Damages from grading street: Taking of land for public use.*(5, 6) *Appeal: Directing judgment below: ' Amendment of pleading. '*

1. In sec. 1210$, Stats. (Supp. 1906; Laws of. 1901, eh. 9) — providing that in all cases where the invalidity of a special assessment for improvements in any city is caused by reason of the work hav*428ing been done “without authority of law *or*by the failure of the common council to pass a valid ordinance adopting” any part or parts of ch. *40a,*Stats. (18S8), no new assessment shall he made until after the due passage of an ordinance adopting the essential provisions of said chapter relating to city improvements,— the word *or*should he construed' as if it were *and;*and the adoption of any part of ch. 40a is prerequisite to a reassessment only when the original. lack of authority was hy reason of a failure to adopt such provisions.

:2. So construed the section is.applicable to all cities in the state, including Milwaukee.

•3. The substitution (hy ch. 354, Laws of 1903) of a remedy hy reassessment in place of an action for damages for the grading of a street where such grading is illegal merely because the previous assessment of benefits and damages was invalid, was within the power of the legislature. No vested right was thereby taken away, since there is no constitutional or common-law right to recover damages for the authorized grading of a street hy a city when there is no negligence in the act; and it was competent for the legislature to provide that a valid assessment should no longer he a condition precedent to the legality of the grading.

4. Where a substantial part of an adjoining owner’s land falls into the street hy reason of the removal of its lateral support in the course of grading there is a taking of the soil for public purposes, for which the owner is entitled to recover at least nominal damages. An assessment, in the grading proceedings, of the benefits and damages accruing from the work does not cover such a taking. *,*

■5. On reversing the judgment of the trial court, if it appear that the case was fully tried and that there is no possibility of a material change, upon a new trial, in the facts proven, the supreme court will direct the entry of judgment.

•6. When a case is ready for final disposition after full trial, the supreme court will not remit it with leave to make application to the trial court to set up a new cause of action or new defense, unless there is, at least, a fairly persuasive showing on the merits and it is also made to appear that the failure to present the new cause of action or defense in the first instance was not due to mere negligence.

Appeal from a judgment of tbe circuit court for Milwaukee county: J". 0. Ludwig, Circuit Judge.

*Reversed.*

For the appellant there was a brief by *John T. Kelly,*city *429attorney, and *Clinton C. Price,*assistant city attorney, of counsel, and oral argument by *Mr. Price.*

For tbe respondents there was a brief by *C. H. Hamilton*and *Howard Van*Wyck, and oral argument by *Mr. Van Wyck.*

The following opinion was filed January 29, 1907:

WiNsnow, J.

This is an action at law commenced in October, 1903, to recover damages for the cutting down of a-street adjoining plaintiffs’ land in the city of *Milwaukee*in-the year 1903 on the ground that the assessment of benefits and damages was void. After its commencement and before-trial the plaintiffs commenced an action in equity against the-city and the contractor to restrain the collection of the assessment of benefits and cancel the certificate, in which latter action an interlocutory judgment ordering a reassessment was-rendered, a reassessment was had which was held valid, and final judgment was rendered thereon, from which judgment no appeal has been taken. After the rendition of judgment in the equitable action the present action was brought to trial and a special verdict was rendered finding (1) that plaintiffs’ land was depreciated in value by the grading; (2) that the-difference in its value immediately before and immediately after the grading without considering any benefits resulting therefrom was $3,975 ; (3) that there was no depreciation resulting from subsidence of the soil Judgment was rendered on this verdict for the plaintiffs for the damages found by the jury, and the defendant appeals.

The defendant moved at the conclusion of the evidence that a verdict in its favor be directed, and excepted to the overruling of the motion, and this exception fairly raises the question suggested in the case of *Pabst B. Co. v.*Milwaukee, 1*26*Wis. 110, 105 N. W. 563, namely, the question of the effect of the reassessment statutes upon an action for damages for the grading of a street when the grading is claimed to have *430been illegal by reason of a defective assessment of benefits and damages.

To properly answer this question a brief consideration of the principles upon which such actions as the present have been sustained, prior to the passage of the reassessment laws, will be helpful. The mere changing of the actual surface of a street by a municipal corporation is not a taking of the private property, of an adjoining owner for public use, and hence not within the constitutional provision requiring compensation to be made. *Harrison v. Milwaukee Co.*51 Wis. 645, 8 N. W. 731. If such change be made under authority of law and vfitk reasonable skill and care, there is no liability for damages in the absence of an express statute giving damages. *Dore v. Milwaukee,*42 Wis. 108; *Harrison v. Milwaukee Co., supra; Colclough v. Milwaukee,*92 Wis. 182, 65 N. W. 1039. If, however, the law authorizes such change only in a certain manner and after the taking of certain definite prescribed steps such as the previous assessment of benefits and damages, the rule has been that the failure to take any substantial prescribed step would render the city liable in an action at law for damages thereby resulting to the adjoining lots. *Crossett v. Janesville,*28 Wis. 420; *Dore v. Milwaukee, supra; Meinzer v. Racine,*68 Wis. 241, 32 N. W. 139; *Colclough v. Milwaukee, supra; Drummond v. Eau Claire,*85 Wis. 556, 55 N. W. 1028. The effect of these rulings was that in such a case as the present full damages could be recovered in the action at law, and the assessment of benefits could be set aside in equity. In this situation, and evidently with the view of obviating some, at least, of the obvious injustice resulting from these principles, the legislature passed ch. 262, Laws of 1897 (subsequently incorporated with some changes in the Statutés of 1898 as secs. 1210J, 1210o, and 1210/).

The first of these sections provided, in substance, that where certain specified street improvements (including grad*431ing) may be made in any city and tlie special assessment made therefor is invalid either (1) for failure to make a proper assessment of benefits and damages, or (2) failure to observe any provision of law, or (3)’ because of any act or defect in the proceeding on which the assessment is based, or (4) because of any unauthorized provision in the contract tending to increase the contract price of the work, the city authorities shall proceed to make a new assessment. The section further provided for an appeal by the property owner, for the issuance of a new certificate in place of the invalid certificate, and for the payment to the certificate holder of the excess of the invalid certificate over the new certificate out of the proper fund. This section was held constitutional and applied to the city of *Milwaukee*in the case of *Sanderson v. Herman,*108 Wis. 662, 84 N. W. 890, 85 N. W. 141. By ch. 9, Laws of 1901, this section was amended so as to provide for a reassessment where the original assessment is invalid (1) because the work has been done without authority of law, or (2) for failure to make a proper assessment of benefits and damages, or (3) for failure to observe any provision of law either in adopting any part of ch. 40a of the Statutes of 1898 or otherwise, or (4) because of any act or defect in the proceedings on which the assessment is based, or (5) because of the insertion of any unauthorized provision in the contract for doing the work. This chapter contained other detail amendments not important to the present discussion, and closed with a new provision to the effect that, when the special •assessment is invalid by reason of the work having been done “without authority of law or by the failure of the common council to pass a valid ordinance adopting any part or parts of said eh. 40 *a,”*no new assessment shall be made until after the due passage of an ordinance adopting the essential provisions of said chapter relating to city improvements, after'which the new assessment shall be as effectual as if made before the doing of the work. By ch. 19, Laws of 1901, it was further pro*432vided that no new assessment should be made after the expiration of three years from the time the original assessment was set aside. The section as thus amended was held valid in a case where the defect consisted of a failure to adopt all the essential provisions of ch. 40a, in the case of *Schinlgen v. La Crosse,*117 Wis. 158, 94 N. W. 84. By ch. 276, Laws of 1903, the section was again amended by making it applicable-to a case where the assessment is invalid because the contract for the work is made with a foreign corporation which has not complied with the provisions of sec. 1770&, Stats. (1898)._ Some further detail amendments were made by this act which are not material here. It is proper to note, however, that in-rewriting that part of the section providing that the excess in-amount of the *invalid*assessment certificate over the new certificate, if any, should be paid out of the proper fund, the word *valid*was erroneously inserted in place of the word *invalid.*The error is so palpable as hardly to justify notice. The word *valid*must be read *invalid,*otherwise the provision becomes worse than meaningless.

It is claimed, however, that the section as it now stands does not apply to. the present case or to any case except one where before the reassessment the city has adopted that part of the general city charter law — ch. 40a, Stats. (1898) — relating to city improvements.,. This claim is based upon the provision first appearing in ch. 9, Laws of 1901, to the effect that “in all cases” where the invalidity of the assessment is caused by reason of the work having been done “without authority of law, or by failure of the common council” to pass a valid ordinance adopting any part or parts of the general city charter law, no new assessments shall be made until the provisions of the general charter law relating to city improve-, ments have been duly adopted. The proposition seems to be seriously urged, but we cannot consider it sound. This clause was put into the law at the same time that the fact of failure to adopt a part of the general charter was added to the law as *433an additional defect which might be cured by reassessment; the two clauses went together, evidently with the idea that where an attempt had been made to make an assessment according to the provisions of the general charter under the mistaken idea that the city had adopted such provisions, there could not be an effective reassessment until the city, by adopting the provisions of the general charter, had clothed itself with power to make an original assessment. If the original assessment was void because of lack of power, any reassessment made before the power was acquired must be void for the same reason.. This view of the legislative idea is further reinforced by the fact that in the very opening sentence of the section it is made applicable to “any city,” just as it was when originally passed in 1897. Again, the act covers a number of defects not connected in any way with a failure to properly adopt the city improvement provisions of the general chanter. Is it reasonable to suppose that, where the assessment is void because of a provision in the contract not authorized by law which increased the cost, the legislature intended to compel a city which has ample provisions for such assessments in its special charter to adopt the general charter before it could reassess? Clearly the remedy in such case would have no relevancy to the defect to be. cured. Really the only ground upon which the claim is based is the fact that the clause in question provides that, where the assessment is void because the work was done *“without authority of law or*by failure to adopt the provisions of the general charter, such' provisions must be adopted before a reassessment is made. The words “without authority of law” are said to cover every defect, and hence the clause covers every case. The manifest incongruity, if not absurdity, of such a meaning, however, justifies resort to rules of construction. No absurd intent should be attributed to the legislature if it can be avoided. The rule is familiar that the word “or” may be construed as' if it were “and” under such circumstances. We think the *434rule should be applied here, aud, when it is applied aud the whole act is read together, aud the evils iuteuded to be obviated are considered, we entertain no doubt that the words “without authority of law” in this provision refer simply to a lack of authority by reason of failure to adopt the provisions of the general charter, and that only in such cases is it necessary that such provisions should be adopted before the reassessment.

Secs. 1210c and 1210f, Stats. (1898), axe really supplementary sections added to sec. 12105 for the purpose of rounding out the reassessment system, and providing for its application after an action has been brought to set aside the assessment. Sec. 1210c provides that in such case, if the court determines that the assessment is invalid by reason of a defective assessment of benefits and damages, the proceedings shall be stayed and a reassessment ordered and made, which the plaintiff may contest until a valid reassessment has been made, when the plaintiff is required to pay into court as a condition of relief the amount of benefits which he should justly pay. Sec. 1210/ provides that in any action to set aside an assessment on other grounds than those affecting the validity of the assessment of'benefits and damages, if the assessment be held void the court shall determine the amount which the plaintiff justly should pay as a condition of relief. There have been amendments to these sections by ch. 354, Laws of 1903, and ch. 294, Laws of 1905, and a new section entitled 1210ee has been added by the last-named act. None of the changes made are material upon the present question except the change in sec. 1210e, which provides that, in an action at law to recover damages arising from failure to make a proper assessment or from failure to observe any provision of law, a reassessment of damages and benefits shall be made as well as-ín an action in equity to set aside the assessment and with like effect on the action. This amendment was made by ch. 354, Laws of 1903, published May 25, 1903. Here was mani*435fested very clearly tbe legislative intent to reversé tbe rule that damages for tbe grading may be recovered at law solely because tbe original assessment of benefits and damages is shown to bave been invalid, and to substitute for sucb legal action tbe remedy by reassessment after tbe work is done. Has tbe legislature power so to provide ? It is said that it bas not, because tbe act of grading was illegal when done, and tbe right to recover damages therefor became a vested right which tbe legislature could not take away. Tbe argument seems strong, but is in our judgment fallacious. When tbe defect in tbe proceedings is simply a failure to make a valid assessment, tbe illegality of tbe act of grading arises simply from tbe fact that tbe law bas made a valid assessment a condition precedent to tbe grading. Tbe legislature could with equal legality bave provided in tbe first instance that tbe grading should be done first and the assessments of benefits and damages made afterwards. This results because, as we bave seen, there is no constitutional or common-law right to recover damages for tbe authorized grading of a street by a municipal corporation when there is' no negligence in tbe act. Suppose that a city charter provided that the assessment of benefits and damages might be made either before tbe work was done or afterwards, at tbe will of tbe council, could it be claimed that sucb provisions were invalid or that, because tbe assessment was not made before tbe grading was done, a liability for damages was incurred ? We" think not. This is practically tbe situation under the reassessment statutes which now exist and existed at tbe time tbe proceedings for tbe grading in question were commenced. Tbe legislature now says to tbe city, you may grade tbe street, making án assessment of tbe benefits and damages first, but, if sucb assessment is not properly made, you may make a proper one after tbe work is done with tbe same effect. By these provisions it seems to us certain that it bas effectually removed a valid assessment as a condition prece*436dent to the legality of the grading. It has provided that there must be a valid assessment at some time during the proceedings, but whether before or after the grading is done is immaterial, and so the act of grading, though done before the valid assessment is made, loses its illegal character and does not in fact become illegal until the time has elapsed within which a valid assessment can be made.

This question was not raised or considered in the cases of *Jorgenson v.*Superior, 111 Wis. 561, 87 N. W. 565, and *Friedrich v. Milwaukee,*114 Wis. 304, 90 N. W. 174, where actions for consequential damages were sustained on account of defects in the assessment of benefits and damages, and these cases, so far as they conflict with the results now reached, must be considered as overruled. There are other cases where the principle that damages may be recovered at law where the assessment was illegal has been referred to approvingly, such as *Haubner v.*Milwaukee, 124 Wis. 153, 101 N. W. 930, 102 N. W. 578, but such references are now disapproved.

It follows that the defendant’s motion for a directed verdict should have been granted.

It appearing that the case was fully tried and that there is no possibility of a material change in the facts proven upon a new trial, judgment for the defendant will be ordered.

*By the Oowrt.*— Judgment reversed, and action remanded with directions to enter judgment for the defendant dismissing the complaint.

Upon a motion for a rehearing there was a brief for the respondents by *C. H. Hamilton,*and a brief for the appellant signed by *John T.*Kelly, city attorney, and *Glinton G. Price,*of counsel.

The following opinion was filed April 30, 1907:

Winslow, J.

The respondent moves for a rehearing in this case upon three grounds which will be briefly considered.

*4371. It is forcibly argued that tbe court was wrong in bold-ing that sec. 1210^ Stats. (1898), as amended by cb. 9, Laws -of 1901, applies to tbe city of *Milwaukee.*We bave again examined tbe question in tbe light of tbe new considerations now urged, and we feel entirely satisfied, with tbe correctness of tbe original decision upon tbis point; bence tbe question will not be reopened.

2. It is urged that it appears by tbe-defendant’s answer that tbe grade of tbe street was not fixed by ordinance until November 20, 1902, wbicb was after tbe actual grading bad been ordered to be done, and bence that there was neither jurisdiction on tbe part of tbe city council to order tbe grading to be done nor jurisdiction on tbe part of tbe court to order a reassessment. Tbis subject was briefly mentioned in tbe original brief of respondents, but was overlooked in tbe opinion: Reference to tbe pleadings'"shows that in tbe complaint it was expressly charged that tbe city fixed tbe grade of tbe street by ordinances adopted during tbe years .1901, 1902, •and 1903, and that tbe resolution by wbicb tbe proceedings for actually grading tbe streets were initiated was introduced into tbe common council March 10, 1902, and adopted May 5, 1902. There was no charge in tbe complaint that tbe proceedings were irregular or illegal on account of any failure to previously fix tbe grade, but tbe sole claim made was that tbe assessment was void because arbitrarily made and because there was a total failure to consider or assess any damages. There was an allegation in tbe answer that tbe first grade of tbe street was fixed November 20, 1902, wbicb would be after tbe proceedings for grading bad been commenced; but it was further alleged in tbe same connection that whatever grading was done in front of tbe plaintiffs’ premises was done for tbe purpose of conforming tbe street to said established grade. Upon tbe argument of tbe case it was claimed that tbis date was a clerical error and should bave been November 20, 1900. However tbis may be, it *438clearly appears that no claim of illegality or irregularity in the grading proceedings on account of failure to properly establish the grade was ever made in this case until it reached this court. The case was fought through the trial court upon the assumption that the grade was established by timely action of the common council, as the complaint in effect states. No attention was paid to the allegation in the answer that the grade was first established in November, 1902, or, if attention was paid thereto, it seems to have been considered immaterial.

It is now stated by respondents’ counsel that since the prior argument sufficient facts have come to his notice to warrant him in asserting that no *valid*ordinance establishing the grade of the street has ever been passed by the common council, and he desires leave to amend his complaint so as to allege this fact and obtain a new trial on this new issue. It will be noticed that he does not claim that no ordinance was attempted to be passed or that the date of November 20, 1902, is the correct date, hut simply that no valid ordinance was ever passed. It is only in exceptional cases that this court will remit a case which is ready for final disposition after full trial, and grant leave to malee application to the trial court to set up new causes of action or new defenses making substantially another case. There must be a fairly persuasive showing on the merits, and it should also appear that the failure to present the new cause of action or defense is not attributable to mere negligence. *Wis. M. & F. Ins. Co. Bank v.*Mann, 100 Wis. 596, 76 N. W. 777. We do not think such a case is here presented.

3. It was an undisputed fact in the case that by reason of the grading of the street the soil of plaintiffs’ premises was left unsupported on the margin of the street, and that considerable quantities of the soil fell down into the street; and the jury found in answer to the third question that the *439subsidence of tbe soil caused no depreciation in the value of tbe premises. It is now claimed by tbe respondents that this subsidence of tbe soil constitutes a taking of property, and that the plaintiffs are in any event entitled to a judgment for nominal damages and costs, irrespective of all other questions. *Damkoehler v.*Milwaukee, 124 Wis. 144, 101 N. W. 706. This court has consistently and frequently held that, in tbe absence of express statute, a city is not liable for consequential damages to an adjoining property owner resulting from tbe lawful change of grade of a street, unless tbe work be negligently done and injury result from sucb negligence. *Harrison v. Milwaukee Co.*51 Wis. 645, 8 N. W. 731; *Smith v. Eau*Claire, 78 Wis. 547, 47 N. W. 830; *Colclough v.*Milwaukee, 92 Wis. 182, 65 N. W. 1039. Tbis is because tbe mere changing of tbe grade of tbe street is not considered a taking of property within tbe meaning of tbe constitution. An instance of recovery on tbe ground), of negligence in doing tbe work will be found in *Bunker v.*Hudson, 122 Wis. 43, 99 N. W. 448, where in grading up a> street tbe dirt was allowed to extend over onto an adjoining-proprietor’s land.

There is a sharp conflict in tbe authorities upon tbe question whether a property owner is entitled as against tbe city to tbe lateral support of tbe soil. There is much authority in support of tbe proposition that no sucb right exists, and Mr. Dillon in bis work on Municipal Corporations (4th, ed. §§ 990, 991) so states tbe rule. There is also much authority to the contrary. 2 Abbott, Mun. Corp. § 819; Elliott, Roads & Streets (2d ed.) § 205. Tbis court upon full consideration of tbe subject in tbe *Damkoehler Case*adopted tbe latter doctrine as tbe one best calculated to do justice, on tbe ground that, where a substantial-part of tbe adjoining owner’s land falls into tbe street by reason of tbe removal of its lateral support in tbe course of grading, there was a *440taking of tbe soil for public purposes and not a mere consequential damage. To tbe authorities in support of tbis rule cited in tbat case may be added *Parke v. Seattle, 5*Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. 68. We shall not rediscuss tbe question here. It must be considered as settled.

Such being tbe law', it appears clearly tbat there has been a taking of private property here for public use, for which the plaintiffs are entitled to recover nominal damages. Tbe assessment of benefits and damages does not cover such taking, for the plain reason tbat such assessment is only designed for tbe purpose of measuring tbe benefits and damages resulting from a lawful exercise of tbe power to grade, not for assessing tbe value of property taken for public use. Although there was no actual damage resulting from tbe taking, tbe plaintiffs were entitled to recover nominal damages for tbe invasion of their constitutional rights, and this would carry costs. Tbe judgment for costs in favor of tbe plaintiffs should therefore have been allowed to stand.

*By the Court.*— Tbe motion for a rehearing is denied without costs, and tbe mandate herein is changed so as to read as follows: The judgment is modified by reducing tbe amount thereof to tbe sum of $124.31, and as so modified tbe same is affirmed, with costs in tbis court to the appellant.