Hickman v. Wellauer

• Decision Date: 02 May 1916
• Citation: 163 Wis. 160,157 N.W. 767
• Parties: HICKMAN v. WELLAUER ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 160

157 N.W. 767

HICKMAN

v.WELLAUER ET AL.

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by John I. Hickman against Jacob Wellauer and others. From an order denying plaintiff's motion for temporary injunction, he appeals. Affirmed.

Action to restrain defendant Wellauer from erecting a stable within the business section of the city of Milwaukee. The facts are these: Plaintiff owns a lot upon which is situated a three-story brick building used as a hotel and restaurant. The defendant Wellauer owns the premises adjoining. In September, 1915, Hartman, a contractor under Wellauer, commenced excavating on Wellauer's premises preparatory to erecting a building thereon. The excavation resulted in disturbing the lateral support of plaintiff's premises. Plaintiff brought an action to restrain further excavation. Wellauer denied the claims of the plaintiff, and upon a hearing on an order requiring the defendants to show cause why a temporary injunction should not be continued the defendant Wellauer gave an indemnifying bond in the sum of $20,000, and the injunction was dissolved. The plaintiff thereafter, and, as he claims, for the first time, learned that the building was being erected as a stable under a building permit issued by the defendant Harper, as inspector of buildings for the city of Milwaukee, and brought this action against Wellauer, as owner, Hartman, as contractor, and Harper, as inspector, to compel the defendants Wellauer and Hartman to surrender the permit issued for the erection of the building, and to compel Harper, as building inspector, to revoke the permit issued by him. Plaintiff moved for a temporary injunction, and from the order denying this motion, he brings this appeal.Chas. E. Canright, of Milwaukee (Herbert J. Piper, of Milwaukee, of counsel), for appellant.

Daniel W. Hoan, City Atty., and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for respondents.

ROSENBERRY, J. (after stating the facts as above).

[1] Plaintiff claims that the permit was issued contrary to the provisions of chapter 4 of the Milwaukee Code relating to buildings. Chapter 4 is entitled “Buildings,” and is divided into 39 articles, composed of sections 27 to 543, both inclusive. Article 27 is entitled “Stables and Structures for Animals.” Section 338 reads as follows:

“No person, firm or corporation shall construct or establish any stable or structure, to be used for the keeping or housing of domestic animals, at a less distance than fifteen feet from any residence, dwelling or place of assemblage.

The floor of all stables or rooms used for such purposes shall be made of material impervious to water and shall be drained by connecting with the city sewer.”

Other articles are headed “Sheds,” “Garages,” “Tenement Houses,” “Theaters and Public Halls,” “Dry-Cleaning Establishments,” etc. Following this is article 39, entitled “Business Section and Fire District,” of which the following is a part:

“ Business Section; Fire District.

Sec. 472. All that part of the city of Milwaukee embraced within the following limits shall hereafter be known as the business section and fire district.

Slaughterhouses, rendering plants and rag shops not permitted in city limits.

Sec. 473. Slaughterhouses, rendering plants and rag shops shall not be permitted or maintained within the limits of the city of Milwaukee.

Building Restriction in Business Section.

Sec. 474. The term ‘business section’ as used herein shall mean:

(a) That all buildings within this section or portion of the city being within the described boundaries may be occupied or maintained for any purpose whatsoever (if in conformity with all ordinances governing the construction of such building).”

“(c) Nothing herein contained shall prohibit the erection of residences within the business section, providing the erection of such residences conforms to the requirements for building within the fire district.

(d) Livery, boarding or sales stables, gashouses, gas reservoirs or holders, paint, oil or varnish works, salesroom or storage room for automobiles or garages for the keeping of automobiles for hire may be built within that portion of the city not set aside for business purposes, providing that the person, firm or corporation desiring to build, remodel or maintain such building for the purpose of a livery, boarding or sales stable, gashouse, gas reservoir or holder, paint, oil or varnish works, salesroom or storage room for automobiles or garage for the keeping of automobiles for hire shall first obtain the written consent of two-thirds of all real estate owners within three hundred feet of the space occupied by the business proposed to be maintained. * * *

(f) Nothing herein contained shall prohibit the erection or occupancy of a building used for business purposes outside of the within-described section excepting as heretofore mentioned.

(g) Any building erected, constructed, remodeled or maintained within the city limits as livery, boarding or sales stables, gashouse, gas reservoir or holder, paint, oil or varnish works, salesroom or storage room for automobiles, or garage for the keeping of automobiles for hire, must be constructed, erected or remodeled the same as a building within the fire district.”

It is admitted that the place in question is within the business district. Appellant contends that the erection of the building in question is forbidden by section 338, set out above. Respondents contend that section 338 is limited by subdivision “a” of section 474, as set out...