Huber v. Stark

• Decision Date: 10 January 1905
• Citation: 124 Wis. 359,102 N.W. 12
• Parties: HUBER v. STARK ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 359

102 N.W. 12

HUBER

v.STARK ET AL.^a1

Supreme Court of Wisconsin.

Jan. 10, 1905.

Syllabus by the Judge.

1. An encroachment by one person into the domain of another, that other not being prejudiced in the occupancy of his land up to the boundary line between the two, as for example by such person projecting the eaves of his building over the boundary line, is remediable at the suit of such other to enjoin as a continuous trespass.

2. If one person without consideration verbally grants the use of his land to another, regardless of whether when the permission is given the parties contemplate that the privilege will be permanent, and whether such other enters upon the land and expends money thereon to facilitate the enjoyment of such privilege, the transaction creates only a mere license revocable at the pleasure of such person.

3. “No one has a right, by an artificial structure of any kind upon his own land, to cause the water which falls and accumulates thereon in rain or snow to be discharged upon the land of an adjacent proprietor. Such an erection, if it occasions the water to flow either in the form of a current or stream, or only in drops, works a violation of the adjoining proprietor's right of property, and cannot be justified, unless a right is shown by express grant or by prescription.”

Appeal from Circuit Court, Columbia County; E. Ray Stevens, Judge.

Action by Michael Huber against Henry Stark and another. Judgment for plaintiff. Defendants appeal. Affirmed.

The facts as found by the trial court, within the issues made by the pleadings, were as follows:

Plaintiff and defendant during the time stated in the complaint, and at the time of the trial, were owners of adjoining buildings. The partition wall was partly on the premises of each. Up to the summer of 1902 such wall extended above plaintiff's roof upwards of ten feet and above defendant's roof upwards of two feet, and the construction was such that the water from the latter's building flowed therefrom to his own ground. During such summer he constructed on the rear portion of his building, extending some 25 feet towards the front thereof, an addition called a rigging loft. In so doing it became necessary to take down the wall above the old roof from the front of the building back to the space covered by the new construction. He did so and extended his roof over the wall on plaintiff's side so that water deposited on the former's roof necessarily flowed onto the premises of the plaintiff. For the purpose of controlling the manner of such flow defendant attached a trough to the partition wall near the top thereof and on plaintiff's side, extending the same back to the aforesaid new construction and connecting it at that point with a pipe conductor extending along on plaintiff's side of such wall to the rear thereof and thence to the ground, thereby causing the water to flow from the former's roof in a body to the premises of the plaintiff at the foot of such pipe. Plaintiff verbally consented to that arrangement when the trough and connections were erected. In constructing the rigging loft it became essential to close up a chimney located in the partition wall, which plaintiff had a right to have permanently maintained. To that end it was mutually agreed between the parties that defendant might close up the chimney on condition of his building a new one at a place agreed upon for the joint use of the parties, which was done.

By reason of the arrangement aforesaid for conducting the water from defendant's roof to the ground, water at times flowed from his roof in such volume as to overload the trough or it flowed over the same and fell upon plaintiff's roof. Occasionally the trough filled up with ice, causing water to flow upon plaintiff's roof, and in consequence ice formed thereon. By reason of the insufficiency of the arrangement water from defendant's roof injured plaintiff's building to a considerable extent. November 24, 1902, plaintiff notified defendant to discontinue such arrangement, to remove the trough and its connections from the wall, and to so control the flow of water from his building as to prevent the same from going onto the premises of the plaintiff. He neglected to comply with such request and thereupon this action was brought. Plaintiff was injured by reason of water flowing from defendant's roof to that of his in the manner aforesaid, in the sum of $50 subsequent to the 24th day of November aforesaid.

On such facts the court held: That the only right which defendant had to permit the water from his building to flow onto plaintiff's premises, and to maintain a trough and its connections to carry the water to the ground in the manner stated, was a license revocable at the plaintiff's pleasure; that the notice to remove the trough and connections and to cease allowing the water to flow from defendant's building to that of the plaintiff and onto the latter's premises was a revocation of such license; that the maintenance of the trough and its connections and permitting the water to flow from defendant's roof to that of plaintiff was a continuous trespass, which plaintiff was entitled to have abated; that plaintiff was entitled to have judgment accordingly, and enjoining defendant from further maintaining the trough and its connections, and from further permitting the water to flow from his building to the premises of the plaintiff, and judgment requiring defendant to restore plaintiff's building to its former condition by removing therefrom the said trough and its connections, and for $50 damages and costs. Judgment was so rendered, from which this appeal was taken.

Daniel H. Grady, for appellants.

Fowler & McNamara, for respondent.

MARSHALL, J. (after stating the facts).

Counsel's first contention is that respondent should have sued in ejectment and that as proper objections were made and exceptions to rulings saved to present that question here, a reversal should be granted for failure to invoke the proper jurisdiction.

Whether the invasion by one of the domain of another by that one projecting the eaves of his building over the premises of such other, or by any intrusion into the latter's domain, as by projecting a foundation stone beyond the boundary, such other being in no wise disturbed in the occupancy of his own land up to such boundary, is remediable in equity to compel a discontinuance thereof, or by an action for damages as for a trespass, has been solved in the affirmative in some jurisdictions (Aiken v. Benedict, 39 Barb. [N. Y.] 400;Vrooman v. Jackson, 6 Hun [N. Y.] 326; Meyer v. Metzler, 51 Cal. 142;Grove v. City of Fort Wayne, 45 Ind. 429, 15 Am. Rep. 262), and in the negative in others (Sherry v. Frecking, 4 Duer [N. Y.] 452; Murphy v. Bolger, 60 Vt. 723, 15 Atl. 365, 1 L. R. A. 309). It seems that the conflict created in respect to the matter in the New York court at an early date is yet unsolved. Leprell v. Kleinschmidt, 112 N. Y. 364, 19 N. E. 812. Probably it is true, as said in Am. & Eng. Enc. of Law (2d Ed.) vol. 10, p. 531, the weight of authority is in favor of the remedy in ejectment, but this state is committed to the doctrine that if, notwithstanding the encroachment, the owner of the premises invaded really occupies up to his boundary line, the proper action to redress the interference is one for damages, or to abate the aggression as a continuing nuisance. McCourt v. Eckstein, 22 Wis. 153, 94 Am. Dec. 594;Zander v. Valentine Blatz Brewing Co., 95 Wis. 162, 70 N. W. 164;Rahn v. The Milwaukee Electric Railway & Light Co., 103 Wis. 467, 79 N. W. 747;Rasch v. Noth, 99 Wis. 285, 74 N. W. 820, 40 L. R. A. 577, 67 Am. St. Rep. 858. That, it would seem, would rule this case, if the proposition as to the precise facts were new, but it was seemingly so held in Rasch v. Noth, supra. That was a case of overhanging eaves, and judgment in ejectment was reversed upon the ground that the action should have been in equity to abate a nuisance, or for damages for trespass. In Rahn v. The Milwaukee Electric Railway & Light Co., supra, a similar invasion was held to satisfy the rule as to the use of equity jurisdiction to abate a continuing trespass.

Exceptions are urged to several findings of fact as contrary to the clear preponderance of the evidence. It does not seem advisable to discuss the evidence for the purpose of demonstrating the correctness of our conclusion in regard thereto. As we read the record, there is ample evidence to warrant the findings. Counsel view some of them from a radically wrong standpoint. It is said that appellant justified under an oral agreement and the court found such agreement as pleaded, and so should have decided that all interferences complained of were covered by the consideration acquired by respondent in respect to the new chimney. We are unable to find that the court decided that the agreement was made as pleaded. On the contrary, the decision is to the effect that there was no consideration passing between the parties, except as regards the chimney. The same infirmity appears in counsel's criticism of the court's assessment of damages. This inquiry is made: The court having found the agreement as alleged, “how could damages be possibly assessed for injuries naturally caused in...