S. S. Kresge Co. v. Garrick Realty Co.

Citation245 N.W. 118,209 Wis. 305
PartiesS. S. KRESGE CO. v. GARRICK REALTY CO.
Decision Date09 November 1932
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; James Wickham, Circuit Judge.

Action by the S. S. Kresge Company against the Garrick Realty Company. From an adverse judgment, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action to enjoin the tearing down of a party wall, commenced January 14, 1931. From a judgment dismissing the complaint on the merits and ordering assessment of damages for issuance of a temporary injunction entered February 5, 1932, the plaintiff appeals.

The parties are the owner and the holder of a 99-year lease of adjacent premises in the central business district of Milwaukee. The suit was brought to enjoin the defendant from tearing down a party wall between the premises. A temporary injunction was issued. On trial judgment was entered dismissing the complaint, and a reference was ordered to assess the damages resulting from the temporary injunction.

In 1889 a party wall agreement in writing was made between the owners of the properties through whom the parties derive their titles. This agreement bound the parties to it and their heirs and assigns. Pursuant to it the defendant's predecessor in title erected the wall involved with its center upon the line between the tracts, as a wall of a building three stories in height. The agreement provided for a foundation of piles with six-inch plank of hemlock on top; a wall of dimension stone twelve inches thick and three and a half feet wide on top of the plank; a rubble stone wall two feet wide to the grade line; a brick wall twenty inches at the first story, sixteen at the second and third stories, and a fire wall twelve inches wide two feet above the roof. The defendant's predecessor in title was to construct the wall at his own cost. In case the plaintiff's predecessor in title should use the wall, he was to pay the other party one-half the then cost of so much of the wall as he should use, and the wall was to be of such stability as to support the building the plaintiff's predecessor might erect, which was manifestly not contemplated as being higher than three stories. The agreement contained no provision as to the term for which it should run.

In 1912 the plaintiff's predecessor in title executed a 99-year lease of the premises, and this lease is now held by the plaintiff. By the terms of this lease, the lessee was to construct a modern fireproof building on the premises with foundations sufficient to support a ten-story building, to be placed inside the existing party wall, unless a new party wall agreement should be made. In 1915 a theater building three stores in height was constructed by plaintiff's predecessor with foundations as provided by said 99-year lease. The party wall was insufficient to support said new building, and the holder of the lease refused to pay one-half the cost of the wall on the ground that he was making no use of it. This resulted in litigation between the parties wherein it was adjudged that the lessee was not liable for one-half the cost of the wall, for the reason that it was not using the wall and was obliged to construct an independent curtain wall of tile adjacent to the party wall. The trial judge specifically found “that plaintiff's building including the foundation and south wall are entirely independent of said party wall, and that no part of said party wall has been used by said plaintiff for its said building, or as a support of the same.” This curtain wall was of less thickness than would have been required had it not been adjacent to the party wall and was constructed with its outside surface not so finished as to protect the building from exposure to the weather from which the party wall protected it. In constructing this building, the party wall was cut into and removed at intervals for the insertion of the steel up-rights which supported the roof and floors and curtain wall of the new building, and the judgment of the court required the lessee to pay for the portion of the wall thus removed. The buildings thus erected on the adjacent premises remained until 1930, when the defendant tore down its building pursuant to order of the city authorities, for the reason that the rear wall was so dilapidated that the building was unsafe for the use made of it, which was as a theater, and was about to remove the party wall, whereupon this suit was commenced. The defendant offered to allow the party wall to stand if the plaintiff would pay one-half its cost, which plaintiff refused. The plaintiff, since commencement of the suit, has tied the party wall to its own building to prevent its falling. Since tearing down its building, the defendant has used its premises as a public parking place for automobiles, and contemplates so using it until business conditions warrant and permit the construction of a building of ten or more stories. A building of such dimensions is necessary in order to yield income sufficient to cover the value of the land as well as the building cost, which a three-story building would be entirely inadequate to produce in view of the location.

The trial judge herein found as findings of fact that the purpose for which the party wall was constructed no longer exists; that the wall, if in sound condition, would be inadequate to serve present requirements or be of value to either lot owner; that, when the present building was erected under plaintiff's lease, the then owner and lessee “intended to abandon” the old wall as a party wall, or as any part of or protection of the new building; that the wall is not now in condition to support a building such as was originally contemplated; that the ground water level has so fallen as to render the piling and planking insufficient and unsafe from rotting of the timbers above the present water level, and that the wall is unsafe and dilapidated; that the wall is not useful to the plaintiff for any purpose, and its removal will not damage the plaintiff.Lines, Spooner & Quarles and Douglass Van Dyke, all of Milwaukee, for appellant.

Olwell & Brady, of Milwaukee, for respondent.

FOWLER, J.

[1] The appellant assigns as error that several of the findings of fact of the trial court are against the clear preponderance of the evidence, and that as a consequence the judgment is erroneous. However, it may be as to other findings, if any one of three of them is supported by the evidence, the judgment must be affirmed, and we shall consider only these three. The three are, in substance, that (1) the wall is unsafe and dilapidated; (2) the plaintiff's predecessor in title...

To continue reading

Request your trial
8 cases
  • Kruckenberg v. Harvey
    • United States
    • United States State Supreme Court of Wisconsin
    • April 14, 2005
    ...Creating Effective and Elegant Res Judicata Doctrine, 79 Notre Dame L. Rev. 1745, 1745 (2004). 18. See S.S. Kresge Co. v. Garrick Realty Co., 209 Wis. 305, 310, 245 N.W. 118 (1932) ("[A]djudication is res adjudicata and binding on the plaintiff as the privy of its assignor."); Restatement (......
  • Taxman v. McMahan
    • United States
    • United States State Supreme Court of Wisconsin
    • October 29, 1963
    ...Wis. 1, 4, 62 N.W. 533; Christenson v. Mann (1925), 187 Wis. 567, 204 N.W. 499, 41 A.L.R. 1192; S. S. Kresge Co. v. Garrick Realty Co. (1932), 209 Wis. 305, 311, 245 N.W. 118, 85 A.L.R. 283; 69 C.J.S. Party Walls § 1, p. 2; 2 Thompson on Real Property (1961 Replacement), pp. 591, et seq., §......
  • State ex rel. Nw. Dev. Corp. v. Gehrz
    • United States
    • United States State Supreme Court of Wisconsin
    • February 7, 1939
    ...or status once proven to exist is presumed to continue in the absence of evidence to the contrary. S. S. Kresge Co. v. Garrick R. Co., 209 Wis. 305, 310, 245 N.W. 118, 85 A.L.R. 283;Racine County v. Industrial Comm., 210 Wis. 315, 317, 246 N.W. 303;Krantz v. Krantz, 211 Wis. 249, 257, 248 N......
  • Bruss v. Milwaukee Sporting Goods Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 9, 1967
    ...absence of evidence to the contrary. Racine County v. Ind. Comm. (1933), 210 Wis. 315, 246 N.W. 303; S. S. Kresge Co. v. Garrick Realty Co. (1932), 209 Wis. 305, 245 N.W. 118, 85 A.L.R. 283. The defendant further challenges the jury's findings with respect to causation. Our court is committ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT