188 Wis. 305 | Wis. | 1925
This is the second appeal in this actiqn. The previous decision of this court is reported in volume 184 of the Wisconsin Reports on page 352. This appeal is from a supplemental judgment entered by the trial court on the proceedings subsequent to the remittitur. The facts are quite fully set forth in the opinion on the first appeal and need not be here stated, except as to subsequent matters. The mandate of this court on the first appeal herein directed that the judgment be reversed, and the cause be remanded with directions for further proceedings in accordance with the opinion.
After argument and a hearing the trial court re-affirmed the original findings of fact from 1 to 19, inclusive, and made supplemental findings of which only a brief and partial synopsis will be given. Among other things it was found that for a long period, as the result of the discharge of polluted water from the sewer of the city of West Allis and industrial plants, the waters of Honey creek became grossly polluted and increased and the stream frequently overflowed its banks and a considerable portion of the plaintiff’s lands and lands of the city of Milwaukee; that such overflow remained thereon for periods of from twelve hours to three days, causing the lands to become waterlogged and packed; that although the quantity of this effluent from the respective sources varied, the composition, putridity, and injurious characteristics thereof were and are substantially similar at all points of origin or discharge; that when the water re
Findings were made that during the past twelve or thirteen years such polluted condition became gradually increased, causing vile odors, and that now the overflow is almost daily, as the direct result of the increased volume of water thrown into the stream by the defendant city and the industrial plants. There were detailed findings as to the origin and effect of the offensive and noxious odors and that the acts of the city and said industrial plants have caused and still cause a nuisance which is continuous in its nature. It was further found that “the reasonable annual rental value from and after June 4, 1912, of the forty-five acres of land rendered valueless as the proximate result of the conduct of the defendant city of West Allis and said industrial plants hereinbefore found, all things considered and under natural overflowing conditions reasonably to be expected in the locality in question, is fifty dollars per acre; that the reasonable annual rental value from and after June 4, 1912, of the twenty-three additional acres of land rendered partially valueless aá the proximate result of the conduct of the defendant city of West Allis and the aforesaid industrial plants, all things considered and under natural overflowing conditions reasonably to be expected in the locality in question, is fifty dollars per acre, but that there
“That the trial court erred in failing to require plaintiff to establish to a reasonable certainty the extent of damage caused to its property through the wrongful acts of de-' fendant and appellant.
“The trial court erred in computing the damages sustained by the plaintiff to the amount of $32,343 without evidence to sustain the same.”
It is correctly claimed by counsel for the appellant that the burden rested on the plaintiff to establish to a reasonable certainty the amount of damage caused to its property by the alleged unlawful acts of the defendant. It is argued that it was the intention of this court that there should be a new trial on the question of the plaintiff’s damages resulting solely from the acts of the defendant, and this claim is based largely on the following language in the former opinion:
“Assuming, therefore, that the plaintiffs are entitled to recovery herein, the damages must be computed in accordance with the undisputed testimony, and under such testimony such damages should have been materially increased over and above the amount actually allowed. The action, however, having been tried upon the erroneous theory indicated by the opinion, the judgment, of the lower court must be reversed.” Mitchell Realty Co. v. West Allis, 184 Wis. 352, 199 N. W. 390.
It is claimed that it could not have been the intention that the damages could be obtained by computations based merely on the • testimony given in the former proceeding. It is asserted that the record js barren of any evidence upon which the amount of damages could be ascertained; thát in the former hearing the defendant claimed and offered its proof to show that it was in no way liable and that the pollution of the stream was caused by the acts of six other riparian owners located on the stream below the septic tanks
It appeared that there were eight industrial plants located in the city of West Allis above the east-side septic tanks which were required by ordinances to be connected with the sanitary and storm sewers of West Allis, and some of these discharged effluent similar to some of the six plants above mentioned. There was testimony by an expert, based on observations made over a period of six years and many
The plaintiff caused the costs to be paid and the record with the remittitur to be returned and filed with the clerk of the circuit court, and gave due notice that the case would be brought on for further proceedings in accordance with the opinion of this court and the mandate. Arguments were made before the trial court, and subsequently the findings were made. It is significant that the record does not show that any application was made for a new trial or for the taking of additional evidence. Under all the circumstances we see no reason for disturbing the judgment appealed from,
By the Court. — Judgment affirmed.