Mueller Real Estate & Inv. Co. v. Cohen

• Court: Wisconsin Supreme Court
• Writing for the Court: SIEBECKER
• Citation: Mueller Real Estate & Inv. Co. v. Cohen, 158 Wis. 461, 149 N.W. 154 (Wis. 1914)
• Decision Date: 27 October 1914
• Parties: MUELLER REAL ESTATE & INVESTMENT CO. v. COHEN.

158 Wis. 461

149 N.W. 154

MUELLER REAL ESTATE & INVESTMENT CO.

v.COHEN.

Supreme Court of Wisconsin.

Oct. 27, 1914.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the Mueller Real Estate & Investment Company against David Cohen. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnes, J., dissenting.

This is an action for damages. The plaintiff claims that his property has been injured by rainwater being discharged from the defendant's house in such a manner that it percolated through the walls of the plaintiff's house and caused damage.

The plaintiff and defendant own adjoining lots 2 and 3, respectively, in block A of Hathaway's subdivision in the First ward of the city of Milwaukee. The plaintiff's property runs north and south, while the defendant's runs east and west. There is a slope eastward of two feet on the defendant's property to an alley in the rear. On the defendant's lot there is situated a dwelling house which is two stories high, except the addition on the northeast, which is only one story high. The plaintiff has a cottage on his premises which is situated at the rear of the lot. This cottage has a stone basement. The plaintiff's property has been graded down to a level with the street. The premises of the defendant are somewhat higher. About 16 months prior to the trial the defendant had the conductor pipes carrying the rainwater from the roof fixed or repaired, so that the discharge of the water was just a few feet south of the plaintiff's house. The rainwater discharged from these openings washed away the ground of the defendant's lot where it joined the property of the plaintiff, and worked its way through the stone wall of the plaintiff's house and into the basement and kitchen thereof. This caused injury to the woodwork and plaster, and necessitated repairs thereof, and the plaintiff is suing for the cost of repairing the injury thus done to his building. The testimony taken at the trial of the amount of the repairs was to the effect that the back wall, floor of the basement, and a closet over the basement floor had to be repaired. Two of the men who worked on the repairing of the house testified on this subject. The plaintiff, in answer to a question whether the house was in better condition after the repairs than it was before it was damaged by any of this water, testified: “Well of course, there is depreciation, of course, to a certain extent, on everything.” Mrs. Rosche, a tenant of the house at the time in question, testified that the water came into the basement and into the closet above. One of the witnesses, who helped make the repairs, testified that the building was in better condition than it was before any damage had been done by the water from the defendant's property.

This action was first brought in the civil court, and it was there held that any damage the plaintiff suffered was caused by the natural flow of surface water, for which the defendant was not liable. On appeal to the circuit court the judgment of the civil court was reversed and the plaintiff given judgment for the amount of the cost of repairs in full, with interest from the date of the trial in the civil court. From such judgment this appeal is taken.Louis L. Cohen, of Milwaukee, for appellant.

Lorenz & Lorenz, of Milwaukee, for respondent.

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

[1] The facts shown by the plaintiff's evidence are undisputed. The defendant offered no evidence. As appears in the above statement, the water from the defendant's dwelling house was collected and, by means of a conductor pipe, was discharged at a place within a few feet from the plaintiff's building, and thence carried in a current against the wall of plaintiff's building and percolated through the wall into the basement in sufficient quantities so...