#### Church vs. The City of Milwaukee.

Cities. (1) *Damages resulting to lot from change in grade of street; Bern-ed/y of lot owner —*(3-4, 6, 7.) *Evidence and presumptions in such cases.*— ■ (5) *Measure of*damages; *xohat benefits offset.*

Chaií&e oe Venue. (8) *When order may be made; and*(9) *when review able.*

1. The appeal to the common council from an award of the hoard of public works of the city of Milwaukee, provided for by ch. 401, P. & L. Laws of 1869, as amended by ch. 401, P. & *L.*Laws of 1870, relates to an assessment for the grading of a street for the first time, and not to a claim of damages for a *change of grade*subsequently made by the city; and in the latter case the party damnified has his remedy in an action at law. *Goodrich v. Milwarulcee*(34 Wis., 433), as to this point, adhered to.

3. In an action for damages resulting to a lot owner from a change in the grade of a street, proof of the passage of successive ordinances, first establishing the grade and then changing it, with plaintiff’s testimony that he graded the street in each case to conform to such' ordinances, and that the grading was done, in each case, under the superintendence of the city engineer, *held*sufficient, without showing by the record any order of the common council to execute the grade, or any published order of the street commissioners or board of public works, directing the owner to do the work.

*5133. Nor was it necessary for the plaintiff to produce and prove the petition of the owners of property affected, required by the act of 1870.

4. The plaintiff had a right to assume that all necessary steps had been taken by the city authorities to render their acts lawful; and the city cannot be heard to allege the contrary, as against him.

5. The charter provides that “all damages, costs and charges arising’ from a change in the grade of a street “ shall be paid by the city to the owner of any lot * * injured in consequence of” such alteration. *Held,*that while any *peculiar*or *special*benefit conferred upon plaintiff’s lot, not common to other lots in the neighborhood, and not increasing its market value, could not be considered by the jury in fixing the damages, yet if such lot, in consequence of the changed grade, was appreciated in value in common with the other property in that locality, the city was entitled to have such increase of value deducted in the estimation of damages.

6. A *photograph*of plaintiff’s premises, which he testified was as perfect as it could be, was admitted in evidence to show the location and surroundings of said premises and improvements, and aid the jury in determining liow they were affeeted by the change made in the grade of the street. *Eelcl,*that it was properly admitted, a *view*of the premises by the jury being impracticable.

7. Witnesses for the defendant city were asked whether plaintiff’s property was injured or benefited by such grading. *Held,*that the question in that form was inadmissible.

8. An order granting a change of venue, upon affidavits tending to show , that a fair and impartial trial could not be had in the county where the action was brought, in consequence of a very strong and prevalent feeling of the inhabitants of such county against all claims of the kind sued upon, *held,*not an abuse of discretion.

9. On appeal from ajudgment, an objection to an order granting a change of venue cannot be considered, unless an exception was duly taken-.

APPEAL from tbe Circuit Court for *Racine*County.

This action, for damages alleged to have accrued to plaintiff from a change made by the defendant city in the grade of a street after such grade had once been established, was commenced in the circuit court for Milwaukee county; but, on plaintiffs motion, based upon affidavit, the place of trial was changed to Racine county. The plaintiff had a verdict for $1,968 damages; and, a new trial having been denied, the defendant appealed from a judgment on the verdict.

*514The questions presented by the record will sufficiently appear from the opinion.

*M G.*Byan, City Attorney, for appellant

*Jenkins & Elliott,*for respondent.

Cole, J.

The first question discussed by the counsel for the city is the one in regard to the change of venue. He insists that the county court erred in changing the place of trial to Racine county. The ground assigned in the application for a change was, that a fair and impartial trial of the action could not be had in Milwaukee county. The application was founded upon three affidavits- — -one made by the plaintiff, one by Geo. G. Houghton, and one by Jas. G. Jenkins — all of whom certainly swear to the existence of a state of facts which tends to show that a fair and impartial trial of the action could not be had in Milwaukee county in consequence of the very strong and prevalent feeling among the citizens of the city of Milwaukee against all claims for damages on the part of lot owners resulting from a change in the grade of the streets. These affidavits were not opposed by anything offered on the part of the defendant, and they seem to us to make out a proper ease for a change of venue. At all events, it seems to us impossible to say that there was any abuse of discretion on the part of the county court in granting the application upon the case made. And we may still further remark that we do not find in the record any exception taken to the order changing the venue, which is, perhaps, of itself a sufficient answer to this objection.

The action is brought against the city under section 18, chap, 10 of the charter of 1852, to recover for damages done to the plaintiff’s property by a change of the grade of the street in front of and adjoining his lot upon which his residence is situated. That section of the charter provides, that where the grade of the street has once been established and is afterwards changed, ‘ ‘ all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot, or parcel of land, or tene*515ment, wbicb may be affected or injured in consequence of tbe alteration of sucb grade.”

Tbe plaintiff claims that the grade of tbe street in front of bis lot was established in tbe year 1853, and that be was required by tbe proper authorities to grade, and did in fact cut and excavate tbe street in front of bis premises to tbe depth of twenty feet below tbe surface of bis lot, and conformed tbe surface of the lot to this changed grade by terracing the same down so as to make tbe lot and bouse accessible from tbe street, and erected a stone wall around the lot to prevent it from caving ; and that this grade was afterwards changed in tbe year 1869, by an ordinance of tbe city, wbicb last grade was something over ten feet lower in front of bis premises than tbe previous grade of 1853 ; and that be has been compelled to further excavate the street in front of bis premises to make it conform to sucb altered grade. As a consequence, tbe premises have been greatly injured, and access to them from tbe street has been rendered difficult and inconvenient; and be has brought this action to recover tbe damages allowed by tbe provisions of tbe charter above quoted.

It is now claimed by tbe counsel for tbe city, that tbe action cannot be maintained, and that tbe remedy of the plaintiff was by an appeal from tbe assessment of tbe board of public works, under section 25, cb. 401, P. & L. Laws of 1869, as amended by section 5, cb. 401, P. *&*L. Laws of *1870;*and that this appeal is bis only remedy. And be further insists that there-are very cogent reasons, growing out of tbe economy and policy of tbe city charter, for bolding that this appeal from the assessment of tbe board was intended to be tbe exclusive remedy for the party aggrieved in a case like tbe one before us. Because, be says, by the various provisions of law regulating tbe subject, before tbe common council orders any street improvement to be made, the board of public works is required to estimate tbe cost of tbe work, and to recommend tbe same; a special assessment of damages and benefits to lots by the pro*516posed improvement is'made, and if tbe benefits and damages of tbe whole work do not balance each other, the excess is chargeable to the ward fund, which is limited in fact as well as in law. And as it was absolutely essential that the common council should be certainly advised of the public cost of each work before ordering it, the appeal was given directly to that body from the decision of the board. And now to hold that each party affected by the assessment may waive his right of appeal to the common council; submit apparently to the assessment; and, after the work is done and paid for, bring his action at law for damages — deranges the whole policy and economy of the charter, and throws upon the general fund of the city an expense designed to be paid out of the ward fund. There is undeniably great force in this view of the various provisions of the charter, but to our minds it is not satisfactory. These provisions do indeed give the lot owner who feels aggrieved by a decision of the board, in a class of cases, the right to appeal to the common council from the assessment of benefits adjudged to accrue to him by reason of a street improvement in front of his lot. And, if dissatisfied with the action of the common council in the matter, the lot owner has a further appeal to the circuit court. But these provisions in terms apply to an assessment for damages and benefits in the ordinary case of grading or otherwise improving the street, and not to a claim for damages resulting from a change of grade. They have reference to a grade of the street for' the first time, and to an assessment made against the lots for such an improvement. As a general rule, this burden is thrown upon the lots abutting upon the street; and, if there are local and peculiar benefits to a lot in excess of damages resulting from the work, the "lot owner is required to pay for them. It is only another way of taxing an individual peculiarly benefited by the street improvement (Ho*lton v. The City of*Milwaukee, *ante,*p. 27) and the provisions are designed only to apply to a particular class of cases. The case before us, arising under sec. 18, ch. 10 of the *517charter, is for damages resulting from an *alteration*of a grade *once established*by tbe city. And tbe section provides, in that case, that all “ *damages, costs and charges arising therefrom*shall be paid by tbe city to tbe owner of any lot or parcel of land, or tenement, wbicb may be affected or injured in consequence of the alteration of tbe grade.” These damages, costs and charges arising from an alteration of tbe grade are not to be reduced by tbe local and peculiar benefits wbicb tbe owner receives, as in tbe case of tbe grading of a street in the first instance. This seems to be tbe proper construction of tbe various enactments bearing upon tbe question. Now, if it bad been tbe intention of tbe legislature to modify this section of tbe charter, and to give tbe board of public worlcs jurisdiction to award damages and assess benefits in cases arising from an alteration of a grade once established, and then to give an appeal to tbe common council, nothing was easier than to have done so. In that case it might have been said, with much force of reason, that this remedy by appeal wbicb tbe aggrieved party bad, was bis only remedy. But such is not tbe fair interpretation of these various provisions. The assessment of benefits which tbe board makes, and from wbicb tbe lot owner has bis appeal to tbe common council, is of a different kind; that is for tbe grading and improvement in the first instance; and it was so decided by' this court in tbe case of *Goodrich v. The City of*Milwaukee, 24 Wis., 422, where this precise question arose. It was there held that this remedy by appeal in a particular class of cases did not take away nor destroy tbe right of action for damages theretofore existing, arising from an alteration of tbe grade. Tbe learned counsel for tbe city suggests that tbe rule in tbe Goodrich case proceeded upon a misconception of the policy of tbe charter, and ought to be changed. But we still think tbe decision there made was correct, for tbe reasons stated in tbe opinion. It seems to us that tbe city charter, and tbe various acts relating thereto, provide no methods for tbe assessment of damages arising from *518tbe alteration of tbe grade of a street, and that tbe provisions in regard to tbe assessment of benefits wbicb is made by tbe board of public works have reference to an entirely different class of cases. And if this view be correct, it follows that tbe plaintiff’s remedy by action has not been taken away or abrogated by tbe provisions in tbe acts of 1869 and 1870 above referred to.

Upon tbe trial, tbe plaintiff offered in evidence an ordinance of tbe common council passed July 14, 1858, establishing tbe grade of several streets, and among them Fourth Street, wbicb is the street in front of bis lot. He also was permitted to prove by bis own testimony, that be graded tbe street adjoining bis premises so as to make it conform to tbe ordinance, and that tbe grading was done under tbe direction of tbe city engineer, who superintended tbe work. Tbe plaintiff also offered in evidence an ordinance passed by tbe common council on tbe 13th of September, 1869, changing tbe grade of Fourth Street in front of bis lot, and proved that be also did this grading under tbe superintendence of tbe city engineer. All this testimony was objected to on tbe trial, and it was then claimed, and it is now insisted, that it was insufficient to prove that tbe grading was done and executed in obedience to proper orders of tbe city authorities requiring it to be done. And the question arises, Was it further incumbent on tbe plaintiff to show by tbe record an order of tbe common council to execute tbe grade, and also a published order of tbe street commissioners, or of tbe board of public works, for tbe owner to do the work mentioned in such notice ? It seems to us that no such record evidence was necessary under tbe circumstances. Tbe common council had authority in tbe first instance to permanently establish tbe grade of tbe street, and also to change tbe grade after it had once been established. Tbe ordinances introduced in evidence show that tbe grade was both established and changed. And it was shown by parol evidence that tbe grading was done in both cases by tbe plaintiff in obedience to these ordinances, under *519the superintendence of the city engineer. Tire city ought not now to be permitted to say there were no orders made for the actual doing of the work, as required by the charter. Certainly not as against the plaintiff, who had the right to assume that all necessary steps ’had been taken by the city authorities to render their acts lawful. *Squires v. The Village of Neenah,*24 Wis., 588. And it seems to us the same answer must be given to the objection that the petition — representing the owners, of property affected by the improvement — required by section 8 of the act of 1870, was not produced and proven on the trial.

The plaintiff had a photograph taken of the premises, which was received in evidence against the objection of the counsel for the defendant. The city engineer was present when the photograph was taken, and the plaintiff testified that, the picture was as perfect as it could be. No effort was made to' impeach the general correctness of the photograph, and we are really unable to perceive any valid objection to its admission in evidence. It might aid the jury in arriving at a clear and accurate idea of the situation of the premises, and enable them the better to understand how they were affected by the change in the grade. Of course, the main thing was to bring before the minds of the jury the location of the plaintiff’s lot and improvements and all the surroundings; and this had to be done by the description of witnesses acquainted with the place, or by pictures or diagrams. If the photograph was a perfect representation of the premises, why should it not be admitted in evidence to aid the jury in determining how they were affected by the alteration of the grade ? It is said that the premises themselves were the highest evidence, and if the jury could have had a view of them, it would have greatly assisted them in passing upon the questions before them. So, undoubtedly, it would. But as a view was impracticable, the jury had to obtain the bést idea they could of the location of the premises with reference to the changed grade. They *yreve*compelled to . *520rely upon the description of witnesses, pictures and diagrams, and such means of information as they had before them. And it appears to us that it was no violation of the rules of evidence to allow the photograph of the premises to go to the jury with the other testimony. The case of *Ruloff v. The*People, 45 N. Y., 213, seems to sanction the admission of such evidence, and we do not really perceive any substantial objection against it. The defendant was permitted to give in evidence a diagram or profile of the premises for the purpose of showing the general surroundings of the property; and the photograph was competent for the same purpose.

The witnesses Milman and Sholes — who were members of the board of public works in 1870, and made the assessment for the grading of Fourth Street —were each asked this question on the trial, by the counsel for the defendant: “Was the property of *Mr. Ohurch*injured or benefited by the grading of 1870 ?v The question was objected to by the plaintiff’s counsel, and excluded. Although an exception was taken to this ruling at the time, it is not seriously relied on here for a reversal of the judgment. There can be no doubt that the question was objectionable in the form in which it was put *(Farrand v. The Chicago & Northwestern R. R. Con.,*21 Wis., 436), and therefore was properly excluded.

This brings us to the consideration of the only remaining question in the case, namely, as to what is the proper rule of damages in cases like the one before us. Upon this point the circuit court instructed the jury, that if they found from the evidence that the plaintiff was entitled to recover, then they should allow him a gross sum in damages equal to the amount which his lot and improvements were lessened in value by reason of the alteration in the grade, and interest on such decreased value from November 2d, 1870, and that in determining the amount of such decreased value, they should take into consideration the nature and condition of the property immediately before and after the grade, and exclude any supposed benefits *521to property on that street arising from the change of the grade. An exception was taken to this portion of the charge, by the counsel for the city, as laying down an incorrect rule for the assessment of damages. This remedy being given by section 18, ch. 10 of the charter, it is obvious that the amount and extent of the recovery turns wholly upon the construction to he placed upon that section. The words of the section have already been quoted in this opinion, and need not, therefore, be again repeated. But the objects and intent of the provision are plain mid unambiguous. And they are to simply indemnify a party whose property was affected or injured by the alteration of a grade of a street which had once been established by the city, for all damages, costs and charges arising from such change. The legislature were well aware that owners of property in the city would arrange the surface of their lots and make their improvements with reference to the grade of the adjoining streets. And where the power to establish the grade of streets was a continuing power in the common council — as it was under the charter — it was frequently exercised to the great loss and injury of lot owners who had thus improved their property and adjusted all the surroundings to the established grade. The object was to protect these parties, and to secure to them full compensation for whatever damages they might sustain by a change of the grade. If a change in the premises became necessary — as a cutting down of the surface of the lot, or filling it up — a raising or lowering of the buildings and walks — whatever expense was incurred in adjusting the premises to the same relative position to the street after the change of grade as before, was to be allowed. But where premises were appreciated in marketable value in common with all other property in the locality affected by the grade, the city should have the advantage of this increased value. It was proper that these general benefits which the plaintiff’s property had in common with the other property on the street should be deducted or set off against the damages. But if there was any *522peculiar or special benefit conferred upon bis lot, not common to other property in the neighborhood — as, for instance, securing suitable drainage, or something of that hind, which did not really increase the marketable value of the property — the plaintiff was to have the advantage of it. Eor he -was entitled to the enjoyment of his property in the condition in which it stood before the alteration of the grade, and if he was compelled to lower his lot by reason of this alteration, the charter secured to him the cost and expense of the work. It will be seen that the circuit court direpted the ¿ury, in effect, that in estimating the plaintiff’s damages they were to exclude the general benefits to property on the street from their consideration. That is, though they might be satisfied from the evidence that in consequence of the change of grade all the lots on the street had been increased in value, and the plaintiff’s in common with all others, yet the city was not to have the advantage of this increase in the value of his property. The court doubtless supposed the same rule should be applied as where property is taken by a railroad corporation, where general benefits common to other property in the neighborhood are not allowed as a set-off against special damages. But we think a different rule applies under the charter. Eor a street is usually graded in the city for the convenience of the public, and .such grading not infrequently confers ' direct benefits upon all the lots on the street. If any one’s premises are injured by the grade, he has no reason to complain, providing his actual loss is made good. And if the amount which the premises are actually diminished in value, by reason of the grade, is added to the cost and expense of putting them in the same relative position to the street after the change that they were before, the owner is fully indemnified within the intent of the charter. All damages, costs and charges arising from an alteration of the grade are paid him when this is done. And it is manifest, in determining the amount which the plaintiff’s lot and improvements were lessened in value, it was proper for the jury to consider the- nature *523and condition of the property before and after the grade, and any advantages and benefits which might be conferred upon it in common with other property on the street affected by the grade. Eor this error in the charge we think there must be a new trial.

*By the*Court.— The judgment of the circuit court is therefore reversed, and a.new tidal ordered.