170 Wis. 429 | Wis. | 1920
The question presented on this appeal is: Did the court err in awarding recovery for any depreciation of the ‘plaintiffs’ homestead property, embracing the eighty-six feet frontage on Pearl street, by reason of the condemned small triangular piece of plaintiffs’ property, amounting to about eleven square feet, lying in Pearl street and being a part of the southwest forty-five feet of the southeast quarter of block 18, abutting on Pearl street and adjoining the -plaintiffs’ homestead?
As above stated, the plaintiffs, as owners of the quarter of block 18, divided it into three parts, each part having on it a residential building. It is stipulated that only the parts occupied as homesteads and the double tenement building,
Looking at the actual situation as presented by the evidence, and the different purposes and uses to which the plaintiffs devote these properties, from a practical and common-sense point of view it must be held as a matter of law, in the light of the adjudications in this court, that plaintiffs can recover in this proceeding only for the depreciation resulting to the tenement property from which the triangular piece was taken. We consider that this result is sustained by the rule and the reasoning of the following cases: Bigelow v. West Wis. R. Co. 27 Wis. 478; Robbins v. M. & H. R. Co. 6 Wis. 636; Welch v. M. & St. P. R. Co. 27 Wis. 108.
The judgment is erroneous in awarding recovery of the $1,900 as depreciation of the homestead property. Judgment should have been awarded as asked for by the defendant, namely, that plaintiffs recover damages in the sum of $1,000, less the costs of the action, pursuant to sec. 1849, Stats.
By the Court. — Judgment reversed, and cause remanded to award judgment in plaintiffs’ favor for the balance, after deducting the defendant’s costs of action, from the $1,000 plaintiffs are entitled to recover.