169 Wis. 18 | Wis. | 1919
The appellants contend: (1) that the court erred in holding that the obligation to support the weight of the building then standing on plaintiff’s lot was thrown upon the defendants by virtue of the provision of the building code of Milwaukee hereinafter quoted; (2) that the findings of fact, particularly those designated in the above statement of facts as (1) to (7) and (9) to (11) inclusive, were contrary to the clear preponderance of the evidence; (3) that the damages as found by the court had no support in the evidence or were in any event excessive; and lastly, should have been diminished by offsetting the cost to defendants in underpinning plaintiff’s building.
As incident to plaintiff’s ownership of his lot he had the absolute right, so far as his land was in its natural condition, to lateral support from defendant Wellauer’s lot. So far as plaintiff had added to the weight of the soil by the erection of his building, for such additional load plaintiff himself must provide by proper support and care whenever defendant wished to exercise his right to excavate on his land. In the absence of actual knowledge by plaintiff of defendant’s intended excavation so near plaintiff’s building that danger thereto might reasonably be anticipated, it was incumbent on defendant to give reasonable notice of such intention, that plaintiff might have an opportunity to protect and support his building. The above is supported by the following au
Plaintiff contends for the view, which was apparently acquiesced in by all concerned at the time the excavations in question here were being made, viz. that the obligation to support the weight of plaintiff’s building was shifted to defendants. This contention is based upon the theory that inasmuch as by sec. 3, ch. IV, of the charter of the city of Milwaukee the common council is vested with full power and authority to make ordinances and regulations for the government and good order of the city and shall have authority to' so provide — “anything in a general law of this state to the contrary notwithstanding — by ordinances, resolutions, bylaws, rules or regulations;” and that in the same chapter among the specific subject matters so to be regulated appears the following: Sub. 62. “To control and regulate the construction of buildings, chimneys and stacks, and to prevent and prohibit the erection or maintenance of any insecure or unsafe buildings, stack, wall or chimney, in said city, and to declare them to be nuisances, and to provide for their summary abatement;” and that in 1914 there had been adopted by the common council of Milwaukee a building code (Milwaukee Code, 1914) for the city containing, among other provisions, as follows: “Section 43. Any person, firm or corporation making excavations or causing the same to be made shall properly guard them and shall so protect them that the adjoining soil shall not cave in, and no one shall excavate so as to injure any adjoining ground or building,” there was by the clause “and no one shall excavate so as
Such conclusion, however, is unwarranted. Such well-established property rights as are here involved between owners of adjacent lands cannot be taken away or substantially changed except by express declaration of the legislature, either by statute or by expressly delegating such a power to the common council. Carpenter v. Reliance R. Co. 103 Mo. App. 480, 77 S. W. 1004. Neither of such is found in this case.
There are well-recognized limitations upon the powers of common councils in the making of valid ordinances and regulations. They must not be inconsistent with the general laws of the state. Baraboo v. Dwyer, 166 Wis. 372, 377, 165 N. W. 297, attempting to fix a speed limit less than that fixed by statute; Morgenroth v. Milwaukee, 125 Wis. 663, 668, 105 N. W. 47, affecting procedure for violation of city ordinances. Such ordinances must be in harmony with the common law as well as the public policy of the state; Barling v. West, 29 Wis. 307, 315, an attempt to prohibit at a temporary stand upon a person’s own property the sale of lemonade without having a license; Mills v. Sweeney, 219 N. Y. 213, 114 N. E. 65, providing for a referendum on questions of public policy; State v. Darnell, 166 N. C. 300, 302, 81 S. E. 338, attempt to prohibit the ownership of land by white or colored people except the majority in such district are white or colored; Marengo v. Rowland, 263 Ill. 531, 533, 105 N. E. 285, ordinance singling out and prohibiting the keeping open of barber shops on Sundays. The effect of ,a statutory regulation in such regard when made is shown in such cases as Regan v. Keyes, 204 Mass. 294, 90 N. E. 847; Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197. The rights of the parties, therefore, must be determined without regard to this ordinance.
No notice was given to plaintiff by defendants of their in
On the 25th the plaintiff, upon his summons and complaint herein, obtained an order, duly served, which required the defendants and all acting under them to “desist and refrain from removing any of the earth and support from, around,' under, and beneath the building of said plaintiff.”
The defendants, as appeared from the affidavit of Mr. Wellauer on the motion immediately made by them to vacate such injunction, declared that the effect of such injunction was to seriously delay and impede the prosecution of the work on the Wellauer lot and that the excavating contractor threatened to withdraw from the premises if he could not be allowed to proceed. Upon the hearing of such motion testimony was given by the building inspector and the defendant Hartman on behalf of defendants, but not made a part of the record herein, and thereupon the injunction was vacated and set aside upon condition of the giving of a bond. The bond, executed and approved by the court on the same day, contained the following recitals:
, “Whereas, the plaintiff herein has obtained an injunction enjoining and restraining the defendant, his servants, agents, and employees, from removing any of the earth and supports from and under the building situated and located on the property of the said plaintiff as aforesaid; and
“Whereas, the defendant herein has obtained an order modifying and vacating, said injunction, so as to permit the defendant, under the direction and advice of competent and*26 capable engineers and with the approval and consent of the building inspector of the city of Milwaukee, Wisconsin, to make such excavations and remove such earth and supports from and under the building located on the property of the plaintiff as aforesaid:
“Now, therefore, we, Jacob Wellauer 'as principal, and ... do hereby undertake that the defendant Jacob Wellauer will pay to the plaintiff any judgment not exceeding the sum of twenty thousand dollars which he may recover against the defendant in this action.”
As appears from defendants’ testimony the work of undermining and underpinning plaintiff’s building and removing the soil from his premises was continuous from the time of starting, September 23d, until October 2d, and during the period while the proceedings were pending on the motion to dissolve the injunction, and that at least two thirds of such work was finished by September 30th, the time when the order dissolving the injunction was made and the bond given.
The defendants were very desirous of avoiding any delay in the work and consequent expense incident to any such delay, the excavator threatening to leave the work if he were to be longer interrupted.
The court found upon sufficient evidence that the proper and usual method to have been used to prevent injury to the building was substantially that of running of iron beams or wooden timbers through the walls at intervals and supporting them on jack-screws resting on suitable framework on the Wellauer lot and within plaintiff’s basement and the use of diagonal braces running from the Wellauer lot to the side of plaintiff’s building. Such a method would more or less have inconvenienced and delayed the progress of excavating on the Wellauer lot and would, under defendants’ testimony, have been far more expensive than the method used by them.
Upon the facts disclosed in this case, the liability already incurred from excavating on plaintiff’s premises before giving notice, the carrying on of the work during the pendency of the injunction, the position defendants assumed by their
We cannot set aside any of the findings of the court for want of evidence.
On such findings as to the method used and that it was an improper one, there is substantial support from what appears in the record as to the advantages of the other method suggested, also as to the possible insufficiency of time that was allowed for the hardening of the concrete mixture used in the underpinning, and the further fact, as shown by the testimony of Mr. Guthrie, one of defendants’ witnesses, that the eight-foot span or open space that was in some of the sections made by defendants in building up the underpinning was too great to stand the necessary strain from the weight of such a wall.
Particular criticism is made by defendants upon the finding that plaintiff’s building was plumb prior to the time defendants commenced their excavating; and while there -is considerable testimony which would have supported a finding to the contrary, yet we think the court was justified in his conclusion in that regard, particularly from what is disclosed by a photograph taken of plaintiff’s building in 1914 in connection with a matter in which none of the parties hereto was interested.
The court was also warranted by the evidence in refusing
On the question of damages the court received evidence of the amount it would cost to repair the building and also the amount of its diminished value by reason of the damages, and adopted as the measure to be allowed the plaintiff the lesser of these two amounts, that is, the diminution in value. This was the correct rule. Bunker v. Hudson, 122 Wis. 43, 55, 99 N. W. 448; 13 Cyc. 152; Hopkins v. American P. S. Co. 194 Mass. 582, 80 N. E. 624; McGrath v. Heman C. Co. 183 Mo. App. 522, 526, 167 S. W. 1086; 68 L. R. A. 703, note.
There is evidence to support this finding as to the amount of damages and it must stand.
In the disposition we are making of this case we can see no reason for granting, as requested by defendants, any allowance to them for their expense in doing this work.
By the Court. — Judgment affirmed.