expense of repaving the same, and that the expense of filling and paving was about the sum of $300. The complaint sets out the proceedings of the common council and of the board of public works, relative to the establishment of such new grade, and the filling and paving the same, from which proceedings, as set out in the plaintiff's complaint, it is apparent that so much of them as relate to the proceedings under which it is claimed the work of filling the street up to the new grade was ordered were entirely void; but, as we shall hereafter show, the subsequent proceedings for paving the street were apparently valid and regular. The plaintiff claims as damages the said sum of $300, the cost of filling and paving said street, and the further sum of $1,000 as damages to his lot occasioned by reason of filling such street up to the new grade.

To this complaint the city demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court below and the plaintiff appeals.

In order to understand the grounds of the defendant's demurrer it becomes necessary to state some of the provisions of the charter of said city which have a direct bearing. upon the questions raised by said demurrer.

Section 18 of subc. 10 of c. 56, Laws 1852, which is an act to consolidate and amend the charter of the city of Milwaukee, provides for the establishment of the grade of all the streets, sidewalks and alleys in said city, and "that when the grade so established shall be thereafter altered, all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot or parcel of land or tenement which may be affected in consequence of the alteration of such grade."

Section 3, c. 401, P. and L. 1870, provides that whenever the board of public works of the city of Milwaukee shall deem it necessary to grade or otherwise improve any street, alley, sidewalk or public ground, they shall cause an estimate of the cost of such improvement to be made, and report the same to the common council, and if approved by the council the board may cause the work to be done, etc. Section 4 provides that before ordering any such work to be done such board shall view the premises and consider the amount proposed to be made chargeable against the several lots, and the benefit which in their opinion will actually accrue to the owners of the same in consequence of such improvement, and

in effect makes the lot chargeable with such part of the cost of the improvement as they shall consider it benefited thereby. Section 5 provides that the board shall give notice to the owners, in the official paper, that an assessment of benefits for such improvement is ready for inspection in their office, and require him to do the work within a certain time; gives the owner, if not satisfied with the assessment of benefits, the right to appeal to the common council, and if upon such appeal he is dissatisfied with the decision of the common council, to appeal from their decision to the circuit court.

Section 4, c. 129, Laws 1873, amendatory of section 5, c. 401, P. and L. 1870, reads as follows: "Section 4. All persons owning or having any interest in any property affected by such assessment, shall, within ten days after the first publication of notice by the city clerk of the said city that such assessment has been reported to the common council, have a right to appeal therefrom to the said common council, and have the same right of appeal now provided by law from the said common council to the circuit court of Milwaukee county. But no such appeal to the said common council shall be taken after the expiration of ten days, as provided in this section. And in all cases of assessment hereafter to be made such right of appeal to the said common council, and from the said common council to the said circuit court, shall be the only remedy for damages sustained by the proceedings or acts of the said city or its officers in the matter to which such assessment relates; and no action at law shall be maintained for injuries sustained by the proceeding or action of the said city or its officers in the matter to which any such assessment hereafter made relates, whether such action be founded on section 18 of chapter 10 of the act mentioned in the title mentioned in this act, and hereby amended, or otherwise."

Section 5 of said chapter 129 provides that in case the common council shall thereafter order the grade of any street to be changed, which has in fact been changed since the twentieth of February, 1852-being the date of the passage of the amended charter which contains section 18, subc. 10, above referred to an assessment of benefits and damages shall be made as in the other cases of grading streets, and all the provisions of law relating to assessments for grading streets shall apply to assessment for grading such street, and the benefits and damages of such grading, "and the damages, costs and charges mentioned in section 18 of chapter 10 of

the act hereby amended, shall be included in such assessment."

Section 13, chapter 401, Laws 1869, provides as follows "Any person entering into any contract with the city, and who agrees to be paid from special assessments, shall have no claim upon the city in any event except from the collection of the special assessments made for the work contracted for, and no work proper to be paid for by the special assessment shall be let, except to a contractor who shall so agree."

It will be seen that the plaintiff's complaint alleges that the raising of the grade of said street was claimed to be done by the common council of said city in pursuance of the laws regulating the manner of doing the same, and that the cost of filling the same in front of the plaintiff's lot was assessed against said lot on account of the benefits which would accrue to said lot by reason of the raising of the grade in front thereof, and that because the same was so pretended to be assessed as benefits, and because the common council had ordered the work to be done by the plaintiff, and unless done by him the city would let the work by contract, and charge the cost of doing the same to the lot, he (plaintiff) did the work.

Under the charter of 1852, above cited, this court held that an ordinary action at law might be brought by the owner of any lot in said city to recover the damages, costs and charges arising from the change of grade of the street in front thereof, after the grade had been once established. Goodrich v. The City of Milwaukee, 24 Wis. 422. In the case of Church v. The City of Milwaukee, 31 Wis. 512, the decision in the case of Goodrich v. The City of Milwaukee, supra, was affirmed, and it was further held that the provisions of the charter, as amended by chapter 401, P. and L. 1869, amended by chapter 401, P. and L. 1870, giving appeals from the assessments of damages and benefits, did not apply to cases where a street grade was changed. Justice Cole, in commenting upon this point, says: "The learned counsel for the city suggests that the rule in Goodrich v. The City proceeded upon a misconception of the policy of the charter, and ought to be changed. But we still think the decision then made was correct, for the reason stated in the opinion.

"It seems to us that the city charter, and the various acts relating thereto, provide no methods for assessment of damages arising from the alteration of the grade of a street, and that the provisions in regard to the assessment of benefits,

which are made by the board of public works, have reference to an entirely different class of cases; and, if this view be correct, it follows that the plaintiff's remedy by action has not been taken away or abrogated by the provisions in the acts of 1869 and 1870, above referred to. This case, and the cases of Stowell v. The City of Milwaukee, 31 Wis. 523, settled a question as to the rule of damages in such case. They hold that the city in such action may, if it can, show in mitigation of damages, or for the purposes of defeating the plaintiff's right of recovery, that the change of grade, and the costs and expenses of such change, were compensated to the plaintiff by the appreciation in the market value of the property of the plaintiff in front of which such change was made.

Justice Cole, who also delivered the opinion in this case, says: "The counsel for the plaintiff objects to that portion of the charge which allows the general benefits conferred upon the plaintiff's premises, in common with the other property affected by the grade, to be offset against the direct damages. But, as we have said in the Church case, this was correct. The plaintiff cannot complain if he is indemnified against all loss resulting from the change of grade, and if his property is appreciated in its market value by the alteration, to that extent he is not damnified but benefited."

In the Church case the court below had in effect charged the jury that the same rule as to damages must be applied as in the case of property taken by a railroad company; but the court says: "We think a different rule applies under the charter; for 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 and condition of the property before and after the grade, and any advantages and benefits which might be con

ferred upon it, in common with other property on the street, by the grade.'

These cases settled two questions: First, that the appeal provided for in the charter of the city, as amended in 1869 and 1870, did not apply to the case of regrading a street upon a change of grade; and, second, that, although the officers of the city could not bind the owner of a lot by an assessment of benefits, in case of regrading a street to a changed grade, either in whole or in part to offset the costs, expenses and damages caused by such regrade, yet in an action by the owner under the charter, to recover such damages, the city could either in part or in whole defeat the plaintiff's action by showing that the plaintiff was benefited by increasing the market value of his lot by such change of grade.

These cases were decided in the June term, 1872, and at the next session of the legislature the city procured the passage of chapter 129, Laws 1873. This act was clearly intended to remove the objection that in cases of the change of the grade of a street in said city no assessments of benefits and damages could be made, and that, therefore, in such cases no appeal from an assessment was allowable under the charter; and sections 4 and 5 of said charter were passed to make it clear, that thereafter the only remedy which a party could have to recover his damages in such cases, if not satisfied with the assessment of damages and benefits made by the city authorities, was by an appeal as provided in that act. We are fully justified, therefore, in holding that at the time the grade of the street in question was changed the city authorities had the right, and it was their duty, to make an assessment of the damages and benefits which the owners of the property on the street would sustain and receive by reason of such change of grade; that when such change of grade and the filling or cutting necessary to conform to such new grade, were ordered to be done in the manner provided by the charter, no party injured thereby could maintain an original action to recover any damages he might suffer by such change, and that his only remedy was by an appeal as provided in said chapter 129, Laws 1873, if not satisfied with the assessment made by the board of public works.

The old provision of section 18, subc. 10 of the Consolidated Charter of 1852 is virtually repealed by the provisions of chapter 129, Laws of 1873, so far as it gave a remedy for the recovery of the damages sustained by the change of grade of a