Dunlop v. Laitsch
| Decision Date | 06 March 1962 |
| Parties | Douglas W. DUNLOP et al., Appellants, v. Robert C. LAITSCH et al., Respondents. |
| Court | Wisconsin Supreme Court |
Louis C. Ritter, Joseph N. Misany, Milwaukee, for appellants.
Clayton A. Cramer, Waukesha, for respondents.
Appellants are members of the Dunlop family. They will be referred to herein as 'Dunlop.' Respondents are members of the Laitsch family and they will be referred to herein as 'Laitsch.'
Dumlop and Laitsch owned adjoining real estate. A portion of their respective lands are low and swampy. The swamp is drained by a small stream. The two parties determined to improve their properties by daming the stream, impounding the water and converting the swamp into a lake. To accomplish this purpose the parties entered into a written agreement, or agreements, which are the subject of this litigation. On July 5, 1956, they signed what we will call Agreement 'A', and at the same time they signed what they refer to as an 'Additional Agreement', and which we will call Agreement 'B'. The material parts of Agreement 'A' read:
'WHEREAS all parties herein concerned mutually desire and agree to construct a body of water in the form of a lake on the above described real estate, which lake would be located on said real estate, affecting the rights of all parties herein concerned and which lake would be advantageous to all parties herein concerned, enhancing the value of their respective property;
'THEREFORE, for the purpose of forming this lake, all parties herein concerned mutually agree to share equally the cost of constructing and maintaining a dam which will be necessary to convert present swamp lands on the above described real estate into a suitable lake; that the cost of constructing and maintaining said dam shall be shared as follows: parties of the first part shall pay half of said cost and parties of the second part shall pay the other half of said cost;
'That the water level of the lake shall remain constant, according to the mutual agreement of all parties herein concerned, and that once a constant water level is arrived at by mutual agreement of all parties herein concerned, said water level shall not be altered in any manner whatsoever or by any person or persons whomsoever, except by mutual agreement and consent of all parties herein concerned.
'That all the provisions of this instrument shall extend to and apply to all parties of the first part and of all second part, and to the heirs, executors, administrators, legal representatives, successors and assigns of the respective parties, and shall remain effective for 25 years from date hereof.'
Agreement 'B' was then executed on the same day. Its material prts are:
'It is further mutually agreed between [Laitsch and Dunlop], that they and each of them shall at a future date mutually agree and come to a common understanding as to the use of their respective lands surrounding the lake which shall be formed on their lands and as to the type and structure of any buildings which shall be erected on their respective lands surrounding said lake.
'It is further agreed that this additional agreement is made by the parties herein named for and in consideration of the mutual considerations previously expressed in agreement attached [Agreement 'A'] hereto and executed together with said agreement, it being the desire and understanding of all parties herein named that the agreement hereto attached and this additional agreement shall be considered as all one and the same agreement.'
After the agreements had been signed the parties consulted several contractors about the contemplated dam and what it would cost and they accepted a contractor, Mann's, recommendations concerning the height of the dam, its design, location, and the materials used in its construction. Mann offered to build the dam such as he described for $1,800 and they employed him to build it. Thus, in the autumn of 1956 a clay dam was built with a concrete spillway. Each party paid half the original contract cost and half of the cost of some repairs required the following spring. The water reached the spillway level in April, 1957, but the level so attained did not inundate Laitsch's swamp lands to the extent he expected or desired and Laitsch demanded that the dam be built higher, Dunlop refused to agree and the dam stayed at the height originally built. In the spring of 1958 other repairs were necessary. These were made by a different contractor engaged by Laitsch.
In the spring of 1959 the dam washed out and Laitsch hired a new contractor to repair it. In the spring of 1960 the dam was again washed out and Laitsch again hired another contractor to make repairs and to increase the height of the dam sufficiently to raise the lake level approximately three feet which Laitsch considered would be sufficient to cover some of Laitsch's exposed low land. The estimated cost of the repaired and enlarged dam is approximately $11,600.
Dunlop brought this action against Laitsch to recover one-half the value of clay taken from his land in the construction of the original dam and for damages to Dunlop's property caused by the activities of the contractors employed by Laitsch subsequent to the spring of 1957. Dunlop alleges that his damages amount to $10,266.
In the alternative Dunlop alleges that it is impossible for the parties to come to any terms or agreement as contemplated by Agreements 'A' and 'B' and demand judgment declaring both such agreements are null and void and the parties shall be put in their original positions. Laitsch answered and counterclaimed demanding that Dunlop be compelled to share the cost of the enlarged dam and be restrained from interfering with the construction and maintenance of it or of the use of the lake.
The judgment dismissed Dunlop's cause of action for damages; adjudged Agreement 'A' to be valid and Agreement 'B' to be invalid; authorized the construction of a dam according to certain specifications to raise the water level three feet; required Dunlop to pay one-half the cost of repairs made in the years from 1958 through 1960, and one-half the cost of the construction and future repair and maintenance of the new dam; and restrained both parties from interfering with such work on the dam or with the enjoyment of the lake by the respective parties. Other provisions of the judgment direct the manner in which the respective parties may enforce, or be compelled to obey, the terms of the judgment.
The trial court found:
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...for amendments, including to the scope of gaming; the compacts do not contain "an agreement to agree." Contrast Dunlop v. Laitsch, 16 Wis.2d 36, 42, 113 N.W.2d 551 (1962).65 In Dunlop, the parties promised to form another contract in the future. Id. In this case, there is no comparable prov......
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