Christensen v. Mann

• Decision Date: 22 June 1925
• Citation: 204 N.W. 499,187 Wis. 567
• Parties: CHRISTENSEN v. MANN ET AL.
• Court: Wisconsin Supreme Court

187 Wis. 567

204 N.W. 499

CHRISTENSEN

v.MANN ET AL.^a1

Supreme Court of Wisconsin.

June 22, 1925.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Jens P. Christensen against Harry E. Mann and others. Judgment for plaintiff and defendant Mann appeals. Reversed and remanded, with directions.

Appeal from a judgment of the circuit court for Racine county, Hon. E. B. Belden, judge, in favor of the plaintiff and against the defendant Mann, for the sum of $2,794.70, damages and costs.

Block 18 of the original plat of the city of Racine is bounded on the north by Fourth street, on the south by Fifth street, on the east by Lake avenue, and on the west by Main street. Beginning on the northeast corner of the block, the lots facing on Lake avenue are numbered consecutively from 1 to 7, each lot being 60 feet in width and 120 feet in depth. Beginning on the southwest corner of said block, the lots facing on Main street are numbered consecutively from 8 to 14, such lots being of the same width and depth as those fronting on Lake avenue.

In order to avoid unnecessary repetition, we will set out the findings of fact of the court, which include many of the undisputed facts, and which present in the main the issues raised herein:

Findings of Fact.

“First. That the defendant Harry E. Mann since August 30, 1912, has been and now is the owner in fee of the west 110 feet in length of the south half of lot 11 in block 18, original plat of Racine, subject to a right of way 12 feet in height over the north 9 feet in width of the south 10 feet in width thereof, used as a lobby or entrance from Main street to the Bijou Theater, situate east of said premises.

Second. That the defendants Simon Sklute and David S. Komiss since December 23, 1919, have been and now are the owners of real estate adjoining the Mann property on the south, described as lots 5 and 10 and the north 10 feet in width of lot 9, and the north 10 feet in width of the west 50 feet in width of lot 6, all in said block 18.

Third. That the plaintiff is a building contractor and was employed by the defendants Sklute and Komiss to construct a building known as the Arcade building on their premises above described.

Fourth. That prior to March 11, 1922, there stood upon a portion of the premises of the defendants, Sklute and Komiss, an old brick building known as the Merchants Hotel, built previous to the year 1860, and that said defendants Sklute and Komiss had prepared plans and specifications for the erection on the site of said Merchants Hotel of a modern office and store building to be known as the Arcade building, and to be 240 feet in length, extending from Main street to Lake avenue and covering their entire premises above described, the north wall of which, for a distance of 110 feet was to be so constructed as to adjoin and be immediately contiguous to the south wall of the building of the defendant Mann.

Fifth. That in the construction of the Arcade building it became necessary to excavate to a depth from 10 to 12 feet below the lowest point of the foundation wall of the building of the defendant Mann along the entire line dividing the two properties; that prior to beginning such excavation, and on March 11, 1922, they notified the defendant Mann what they proposed to do and the depth of the proposed excavation, and that he should provide proper support and protection for his building and its walls. That as the defendant Mann neglected to take any steps for the protection of his building and walls, a second notice of substantially similar import was served upon him on June 15, 1922, which also was ignored.

Sixth. That it became dangerous to proceed further with such excavation, without adequately supporting the building of the defendant Mann and that on or about June 26, 1922, a written agreement was entered into between the plaintiff and defendants, a copy of which is attached to the answer of the defendant Mann and a purported abstract of which is set out in the finding.

Seventh. That the plaintiff, with the approval and consent of C. O. Johnson, protected and supported the building of the defendant Mann by underpinning the foundation wall with brick piers, using shoring timbers for temporary support during the progress of the work.

Eighth. That the foundation wall of the Mann building was built of field stone and had disintegrated to some extent and was in bad condition; that the theater entrance through the Mann building was in constant daily use by a large number of people attending the theater in the rear; that the underpinning method adopted by the plaintiff and approved by Johnson was the generally approved and safest method of doing the work; that the so-called sheathing method, in view of the uses to which the adjoining buildings were put and the depth of the excavation, was inadequate and unsafe, and had such method been used it would have been necessary also to needle the Mann building, or otherwise support it, at an expense as great or greater than the expense of underpinning.

Ninth. That it would not have been practical to support the Mann building during the construction of the new building by building the Arcade wall and foundation in small sections, and that such method would have been inadequate and dangerous, unless combined with and supplemented by the needling method, or some other method of support; and that building the wall in small sections would have been more expensive than the underpinning method actually used.

Tenth. That the defendant Mann did not direct the plaintiff to use any other method than underpinning, nor undertake the responsibility and consequences of using any other method, or himself undertake or offer to support his building by any method whatsoever, nor did he at any time prior to the signing of said contract with the plaintiff, extend to the plaintiff or to the defendants Sklute and Komiss the privilege of entering upon his property for the purpose of supporting his said building.

Eleventh. That no support was necessary for the soil in its natural condition, but that support was necessary because of the pressure or weight of the building upon the soil.

Twelfth. That prior to the destruction of the Merchants Hotel building in April, 1922, the east 39 1/2 feet only of the Mann wall was a party wall and used as such by Mann and the owners of the Merchants Hotel, but that said wall was situate wholly upon the Mann property and was abandoned by the defendants, Sklute and Komiss, and ceased to be a party wall or used as such upon the wrecking of the hotel building.

Thirteenth. That plaintiff furnished all the work, labor, and material in underpinning the building of the defendant Mann and that the work was completed on July 18, 1922, and approved and accepted by all of the defendants.

Fourteenth. That the contract price of the work included 10 per cent. over and above the cost thereof, and amounts to $2,461, which sum became due and payable on July 18, 1922, and no part of which has been paid.”

The following are the conclusions of law:

“First. That the duty of supporting the building of the defendant Mann was upon him, and not upon the plaintiff or the defendants Sklute and Komiss after the service of notice by the latter.

Second. That the defendants, Sklute and Komiss, were not required to build the Arcade wall in sections in order to support the building of the defendant Mann nor to undertake the responsibility and risk of using any other substitute method, but such duty was upon the defendant Mann himself.

Third. That the plaintiff is entitled to judgment for the sum of $2,461, with interest from July 18, 1922, and for costs.”

The soil of the lots, on which the Arcade building was constructed consisted of hard clay, of a very solid and durable variety. The contract for doing the excavating upon lots 5 and 10 was sublet to one Socha, who had practically completed the entire excavation prior to June 26, 1922, excepting only that there was left to the south of the dividing line between lots 10 and 11 a bank of earth for the purpose of affording temporary protection to the south wall of the building belonging to the defendant Mann. Up to that time Mann had taken no steps whatever to protect the south wall of his building, and it became apparent to all of the parties that if the excavation proceeded up to the line of the two adjoining properties without resorting to some means whereby the walls of the Mann building would be amply supported, great danger would be encountered by the possibility of the wall giving way and caving in onto the property of the defendants Sklute and Komiss, thereby resulting in great damage to both adjoining owners. Mann took the position that the duty of protecting his south wall rested upon the defendants Sklute and Komiss, while the latter contended that, inasmuch as they had given the two notices referred to in the findings of fact herein set forth, the obligation to support such Mann wall rested upon Mann himself.

At this stage the parties hereto had a conference, which resulted in the execution of the contract of date of June 26, 1922, a copy of which was appended to the answer of the defendant Mann, and referred to in the findings. This contract is a three-party contract, in which Mann was designated as the party of the first part, Sklute and Komiss as parties of the second part, and the plaintiff, the general contractor of the building, herein referred to as the Arcade building, as the party of the third part. In the contract, after reciting the ownership and describing the respective pieces of property, the depth of the wall of the Arcade building beneath the foundation of the Mann building, and the controversy which had arisen between the owners of the respective properties as aforesaid, authority was granted to the party of the third part to enter upon the premises of the parties of the first and second part, to support and protect the...