Fiorini v. City of Kenosha

• Decision Date: 20 June 1932
• Parties: FIORINI v. CITY OF KENOSHA.
• Court: Wisconsin Supreme Court

208 Wis. 496

243 N.W. 761

FIORINI

v.CITY OF KENOSHA.

Supreme Court of Wisconsin.

June 20, 1932.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Circuit Judge.

Condemnation proceedings were instituted by the City of Kenosha against Joseph Fiorini to condemn a leasehold interest, and Fiorini appealed to the court from an award of the commissioners, and from a judgment of nonsuit, he appeals.--[By Editorial Staff.]

Affirmed.

Proceedings were instituted to condemn a leasehold interest through widening a street. An appeal to the court from an award by the commissioners was taken July 10, 1928. From a judgment of nonsuit entered August 31, 1931, the lessee appeals.

The case is an appeal by a lessee from an award of damages by commissioners in condemnation proceedings for the taking of a part of the leased premises for the widening of a street on which the leased property abutted. The plaintiff was using the premises as a meat market. The size of the building was twenty by sixty feet. The lease would expire September 21, 1931, and his rental was $175 per month. About May 1, 1928, the plaintiff was notified by the city to vacate the premises by May 1, 1929. The plaintiff rented a place on the opposite side of the street, about a block away from the leased premises, thirty-six by eighty feet, at $350 per month. He began paying rent under the new lease on July 1, 1928, and continued to pay rent on the old lease also. He moved into the new store October 1, 1928. He moved his fixtures into the new location. They did not fit and an ice machine so moved for some reason became useless and valueless. He claims his business in the new location was less profitable than in the old and claims, as damages, depreciation in the value of the fixtures, loss of profits, and the rents paid on the old lease from October 1, 1928, to May 1, 1929, and on the new lease from July 1, 1928, to October 1, 1928. He offered to prove such depreciation and loss of profits, but objection thereto was sustained on the ground that they did not constitute elements of damage. No other proof was offered, and the court granted a nonsuit and judgment was entered dismissing “the action and appeal” with costs.L. E. Vaudreuil, of Kenosha, for appellant.

Roy S. Stephenson and Chester D. Richardson, both of Kenosha, for respondent.

FOWLER, J.

The plaintiff offers no authority in support of his claim that the depreciation of fixtures and loss of profits are recoverable as damages. He goes on the general proposition that the damages recoverable in any action are compensation for the injury or loss suffered; claims that when profits are actually lost and depreciation actually suffered as a result of a tenant's being ousted from leased premises, the amounts so lost and suffered can be recovered from the landlord if they can be proved with reasonable certainty and that they can be so proved in this case; and he assumes that the measure of damages recoverable from the city by a lessee who is compelled to vacate the leased premises in condemnation proceedings is the same as from a landlord who ousts his tenant by breach of the lease.

The case will be treated by taking up in order the assignments of error which are: (1) The rejection of evidence of loss of profits; (2) the rejection of evidence of depreciation in the value of his fixtures; (3) the rejection as an item of damages of his disbursements for rentals as in mitigation of damages; (4) the granting of the judgment of nonsuit.

[1] 1. Loss of profits are held not recoverable or provable in condemnation of an owner's interest. 20 Corp. Jur. 782; Becker v. Phila. & R. T. Ry. Co., 177 Pa. 258, 35 A. 617, 35 L. R. A. 583;St. Louis, K. & N. W. Ry. Co. v. Knapp, Stout & Company, 160 Mo. 396, 61 S. W. 300, 304. If not recoverable by an owner, it is not perceived why they should be recoverable by a lessee. That they are not recoverable by a lessee is held in Bales v. Wichita Midland R. Co., 92 Kan. 771, 141 P. 1009, L. R. A. 1916C, 1090;Des Moines Wet Wash Laundry v. Des Moines, 197 Iowa, 1082, 198 N. W. 486, 34 A. L. R. 1517;Kafka v. Davidson, 135 Minn. 389, 160 N. W. 1021. Loss of trade by deflection of travel was held in Voigt v. Milwaukee County, 158 Wis. 666, 149 N. W. 392, not recoverable by an owner as an element of damages, although receivable in evidence as bearing on the market value of the premises. We are of opinion that there was no error in rejecting evidence of loss of profits.

[2][3] 2. It is stated in 2 Lewis on Eminent Domain, § 488, that damages to personal property or the expense of removing it cannot be considered in estimating damages for the taking of land by condemnation. That depreciation of a lessee's fixtures is not an element of damage in condemning his leasehold is held in Des Moines Wet Wash Laundry v. Des Moines, supra; Shipley v. Pittsburg, etc., Ry. Co., 216 Pa. 512, 65 A. 1094;Kersey v. Schuylkill River E. S. R. Co., 133 Pa. 234, 19 A. 553, 7 L. R. A. 409, 19 Am. St. Rep. 632;Ranlet v. Concord Ry. Corp., 62 N. H. 561; Bales v. Wichita, etc., Ry. Co., supra. By these cases, however, the fixtures placed on the premises by the lessee and their value may be shown as affecting the value of the lessee's term. As there was here no evidence offered as to the value of the remainder of the term, and the evidence was offered to establish an item of damages, there was no error in rejecting it.

[4][5] 3. No condemnation cases are called to our attention in which expenditures in mitigation of damages have been allowed or claimed. In view of the general rule as to the measure of damages in such cases which is the difference between the values of the property affected before and after the taking, we do not perceive any reason for receiving expenditures in evidence. Expenses of removing personal property cannot be considered. 2 Lewis on Eminent Domain, § 488; Ranlet v. Ry. Co., supra. Such expenditures...