Bandlow v. Thieme

• Citation: 9 N.W. 920,53 Wis. 57
• Parties: BANDLOW v. THIEME, IMPLEADED, ETC.
• Decision Date: 27 September 1881
• Court: United States State Supreme Court of Wisconsin

53 Wis. 57

9 N.W. 920

BANDLOW

v.THIEME, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Milwaukee county.

Austin & Runkel, for respondent.

Johnson, Rietbrock & Halsey, for appellant.

ORTON, J.

This suit was brought hefore a justice of the peace. The complaint charges substantially that the defendants, during the tenancy of the defendant Charles Thieme, by a lease from the plaintiff, unlawfully, wantonly, maliciously, and with ill-will towards the plaintiff, and with intent to injure him, threw and daubed upon the walls and windows of the dwelling-house situated on the demised premises greasy and offensive matter, and by negligently and maliciously injuring and destroying a waste-pipe under a sink in said dwelling, offensive water and matter accumulated under said sink from which an unwholesome and offensive odor emanated, and still emanates, and that the premises were thereby injured and rendered unfit for occupancy. The defendants answered separately by general denial. On the trial before the justice, and on the conclusion of the plaintiff's testimony, the defendants moved for a nonsuit, on the grounds (1) that none of the acts complained of were proved to have been done by the defendants; and (2) that the acts complained of are alleged and proved to have been done while the defendant Charles Thieme was tenant of the plaintiff and in possession. This motion was overruled, and judgment was rendered against both of the defendants for the sum of $110 and costs.

After the hearing of the certiorari in the circuit court, the record recites, “that having made an order that the judgment of the court below be affirmed,” the court rendered a formal judgment in favor of the plaintiff and against the defendant Charles Thieme alone, for $110 damages and the costs in the justice's court and interest thereon, and the costs in the circuit court, amounting in all to the sum of $162.58. The appeal to this court is from this judgment. This judgment is clearly irregular, and it must be reversed for that reason. The only proper judgment on certiorari is to quash the writ, or to affirm or reverse the judgment of the inferior court in whole or in part. 5 Wait, Pr. 447; Hurlbut v. Wilcox, 19 Wis. 419;McNamara v. Spees, 25 Wis. 539.

The only assignments of error were--(1) That the justice had no jurisdiction of the subject-matter of the action, because it was an action of waste; (2) that the justice had no jurisdiction to try the cause, because the title to real property came in question.

As these questions may again arise on the future hearing of the case, we deem it proper to consider and decide them on this appeal. This is not strictly an action of waste or an action on the case for waste, nor is the injury complained of waste within the legal signification of that term. It is an action on the case for wilful and malicious injury to real property, less than and different from waste, strictly considered. It is brought to recover damages for wilfully and maliciously placing upon the walls, windows, and under the sink of the tenement, filthy and offensive matter, which was disgusting in appearance and odor, unwholesome and grossly indecent, and, to some extent, detrimental to the agreeable and comfortable enjoyment of the possession by the actual occupant of the building. The injury, as commissive, is of the same nature as similar injury permissive; as if these parts of the building had been allowed, through mere negligence or carelessness, to become dirty, filthy, and offensive, which certainly could not properly be called waste or want of repairs, even. These parts of the building were not destroyed, or materially changed or injured, or removed or deteriorated, but only rendered unseemly and offensive, and their use and enjoyment lessened by their filthy condition. Waste proper, by injury to such parts of the tenement, would be their destruction, or material alteration, either irreparable or which could be repaired only by the use of other or the displaced materials for their restoration or reconstruction. This injury is reparable, merely by cleansing or by the removal of the offensive matter from such parts of the building, otherwise remaining in proper condition and intact. Without further illustration, “waste is where any spoil or destruction is made of houses, lands, woods, etc., by tenants to the danger of the heir or him in reversion or remainder.” Jac. Law Dict. tit. “Waste.” “The destruction or material alteration of any part of a tenement by a tenant (for life or years) to the injury of the person entitled to the inheritance.” 1 Steph. Com. 241. Waste and destruction, “ vastum et destructio,” areconvertible terms, according to Bracton. Bract. fol. 316 b. “It may be committed by alteration as well as destruction of any part of a tenement.” 3 Bl. Com. 223; 2 Burrill, Law Dict. tit. “Waste.” “It is waste to alter buildings or vary in any manner permanent erections. 6 Wait, Actions & Defences, 239. Our statute, in providing a remedy for waste, defines it as “of houses, gardens, orchards, lands, or woods,” conveying the very idea of their physical destruction, alteration, or removal. Section 3171, Rev. St.

The decisions of this court in cases of waste are in accordance with the above definitions, and recognize only such injuries to real property and to the estate thereon as are material and substantial alterations of its physical condition or as cause a discrimination thereof. Willis v. Fox, 35 Wis. 646;Lackas v. Bohl, 43 Wis. 53. And such is the effect of the decisions of all the courts...