Capitol Sand & Gravel Co., Inc. v. Waffenschmidt, 68

• Decision Date: 03 February 1976
• Docket Number: No. 68,68
• Court: Wisconsin Supreme Court
• Parties: CAPITOL SAND & GRAVEL COMPANY, INC., a Wisconsin Corporation, Respondent, v. C. C. WAFFENSCHMIDT, Appellant. (1974).

Page 745

237 N.W.2d 745

71 Wis.2d 227

CAPITOL SAND & GRAVEL COMPANY, INC., a Wisconsin

Corporation, Respondent, v. C. C. WAFFENSCHMIDT, Appellant.

No. 68 (1974).

Supreme Court of Wisconsin.

Submitted Jan. 7, 1976.

Decided Feb. 3, 1976.

Conway & Conway, Baraboo, for appellant.

Hill, Quale & Hartmann, Baraboo, for respondent.

ROBERT W. HANSEN, Justice.

The parties to this action have gone to court twice over a single pile of gravel. In the first of the two cases, the landowner established that the gravel company had gone beyond the intent and agreement of the parties in storing gravel from another pit on the landowner's property, and was awarded damages. In this second action, here on appeal, the gravel company was awarded judgment on findings that: (1) The gravel company was entitled to possession of the gravel stockpile; (2) the stockpile was wrongfully detained by the landowner; and (3) the value of the stockpile was $6,800.

As to entitlement to possession, the jury verdict, left unchanged by the trial court, answered affirmatively the question of the plaintiff being entitled to possession. The parties had stipulated that, '. . . title to the stockpile of earth material on the Waffenschmidt property is absolutely and wholly in the name of Capitol Sand & Gravel.' Defendant did seek to withdraw this stipulation so that he might show that the gravel was intermingled with earth material from his own property, but the trial court refused permission to withdraw the stipulation. The trial court held the issue to be moot because the landowner's position in the first action estopped him from claiming title or asserting intermingling as to the stockpile. The question of ownership or entitlement to possession was necessarily involved in the landowner's earlier action for damages. The verdict in his favor in the earlier action was, in effect, a finding that the gravel belonged to the gravel company and was wrongfully placed or stored on his property. In an analogous situation, except that a stipulation as to title was there present, our court held a city estopped by a former verdict and judgment to deny in a subsequent action that the plaintiff was the owner in fee of the lots in question. ¹ We find no abuse of discretion in the trial court's application of estoppel and denial of defendant's request to withdraw from a stipulation as to facts under the circumstances here present. We find no basis for quarrel with the jury finding that the gravel company was entitled to possession of the gravel stockpile involved in the two actions.

As to wrongful detention, the trial court changed the jury answer to find that there had been wrongful or unlawful detention. We agree that the evidence established that the gravel company owned the stockpile, that the pile was located on the defendant's land, and that the defendant would not allow the gravel company to remove the pile. The defendant claims that only a 'qualified refusal' was made, a denial only of permission to come onto the property on a gratuitous basis. But, at the trial, the testimony of the defendant himself was that the refusal was absolute. The defendant was asked: 'Mr. Waffenschmidt, you have prevented Capitol Sand and Gravel from coming on your property to get that stockpile of material, have you not?' The defendant answered: 'Yes.' Defendant also argues that mere detention does not establish an unlawful taking or conversion. However, even if the taking may have been lawful, or under authority of the plaintiff, the detention may be wrongful. ² In a replevin action, proof that property was wrongfully detained at the time of the commencement of the action is sufficient to meet the replevin requirement. ³ Even if the original taking was not wrongful, if a defendant detains property when by law the plaintiff is entitled to have it returned to him, such detention becomes wrongful. ⁴ Under the replevin statute, '. . . Upon the trial the court or jury shall find: . . . whether the defendant unlawfully took or detained the same . . ..' ⁵ The trial court was correct in changing the jury answer as to wrongful detention, there being no credible evidence to support the jury finding that the property was not wrongfully detained.

As to the value of the stockpile, the trial court changed the jury finding as to value from $3,800 to $6,800. This figure of $6,800 was the estimate testified to by plaintiff's expert witness, president of two concrete companies with experience in working with gravel. (The president of plaintiff company estimated the value of the stockpile at $7,000.) The landowner offered no proof of value, but attacked the estimates of plaintiff's witnesses as to the tonnage or size of the stockpile. The dispute at trial was not as to the value of the gravel but rather as to the quantity or amount of gravel in the pile. The expert witness estimated that the pile contained 8,500 tons of material. On earlier occasions, the president of plaintiff company had described the pile as containing 4,000 tons. It is undisputed that the lower figure of 4,000 tons was based on erroneous figures supplied by subcontractors. It is also undisputed that the company president subsequently measured the stockpile himself and came up with the figure of 8,900 tons. No evidence was presented by the landowner to prove measurements or value. ⁶ Our court has held that testimony "on subjects like measurements and distances" that is based on memory or casual observation "must yield to that which is based on actual measurement." ⁷ Here, while a differing estimate as to quantity was contained in a letter written by plaintiff's attorney, the only testimony of quantity or tonnage based on measurements and presented at the trial was that of the expert witness and the president of plaintiff company. The question presented was not one of opinions as to value, but rather of tonnage testimony based on measurements made as to the dimensions of the stockpile.

As to opinion evidence as to value, such evidence is generally not binding on the trier of fact, even when it is not met by opposing proof. ⁸ The general rule in this state, as elsewhere, is that ". . . the opinion of an expert, even if uncontradicted, is not required to be accepted as such testimony must pass through the screen of the fact trier's judgment of credibility." ⁹ However, as above noted, this court, in Serkowski, treats differently ". . . the testimony of disinterested and unimpeached witnesses on subjects like measurements and distances . . .." ¹⁰ In this area of measurement testimony, not only must testimony based on memory or casual observation "yield to that which is based on actual measurement," ¹¹ but, under the Serkowski rationale, it is not to be rejected in the absence of opposing proof. Analogous would be the situation of an expert on real estate values testifying both as to the value of a piece of property and as to measurements he actually made of the dimensions of a building on such property. It would be for the trier of fact to determine the weight and credibility to be given to such expert witness' opinion testimony as to the fair market value of the property. However, as to the measurements actually taken as to the length and width of the property, if there is no opposing or differing testimony offered, such testimony is not to be ignored or rejected by the trier of fact. In the case before us, the trial court held that the measurements testimony was given by a disinterested and unimpeached expert witness, and found such testimony to establish the tonnage or dimensions of the stockpile. On appeal defendant...