Schaefer v. Hoffman

• Decision Date: 05 March 1929
• Citation: 223 N.W. 847,198 Wis. 233
• Parties: SCHAEFER ET AL. v. HOFFMAN ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 233

223 N.W. 847

SCHAEFER ET AL.

v.HOFFMAN ET AL.

Supreme Court of Wisconsin.

March 5, 1929.

Appeal from a judgment, in favor of the defendants, of the Circuit Court for Milwaukee County; Hon. R. S. Cowie, Judge presiding.

Action by William Schaefer and others against A. A. Hoffman and another. Judgment for defendants, and plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Greenfield avenue is an east and west street on the south side of the city of Milwaukee, and the plaintiffs herein and the defendant Hoffman are the owners of lots which adjoin, facing the south, plaintiffs owning the westerly lot and the defendant Hoffman owning the easterly lot. In January, 1924, and for some time prior thereto, there was located upon plaintiffs' lot a one-story garage, supported in part by structural steel and trusses, and inclosed on the east side of the building, which extended to the lot line on that side, by a wall constructed of concrete blocks. The footings of this wall extended about four feet or a little over, beneath the grade of plaintiffs' lot. At that time the defendant Hoffman, whose lot was vacant, concluded to erect a building thereon, extending clean to his lot line on the west, so that the east wall of the garage and the west wall of the defendant Hoffman's building would be flush and contiguous with each other. According to the plans and specifications provided for the proposed new building, the footings thereof were to be located about three feet lower than those of the garage, and the entire basement of the new building required a uniform excavation three feet lower than the basement of plaintiffs' building.

None of the lot owners at that time, apparently, were familiar with their respective rights and obligations under such a situation. and in order that the defendant Hoffman might be properly advised in the premises, he consulted the city attorney of Milwaukee, and there ascertained the information that, in order to properly protect his interests and to relieve himself from liability on account of any damages which might occur, it would be necessary for him to exercise such ordinary care during the process of excavation as would not unnecessarily disturb either the soil of the adjoining lot owners, or their building; that it was also incumbent upon him to give timely notice to the plaintiffs of his intentions, so that the plaintiffs might use necessary precautions with respect to the support of their own building. The information so acquired by the defendant Hoffman was communicated to the plaintiffs, whereupon the plaintiff William Schaefer, in order to verify the information received from the defendant Hoffman, also conferred with the said city attorney, and was likewise advised.

Thereafter, and within a reasonable time prior to the commencement of the excavation, the defendant Hoffman served upon the plaintiff William Schaefer and upon his partner, Henry Hastrich, a notice in writing of the following tenor and purport: “I will not be responsible for any damage that may be caused your building during the entire process of the erection of my flat, store and apartment building and garage at 1016 Greenfield Avenue. Please be governed accordingly. Yours very truly, A. A. Hoffman.”

The defendant Brezinski at the times mentioned herein was engaged as an excavator of basements, and a subcontract was let to him to do the excavating for the basement of Hoffman's proposed new building. Plaintiffs, in order to protect their garage, and particularly the east wall thereof, entered into a contract with one Stoltz, a mason contractor, by the terms of which, for a stipulated consideration, said Stoltz agreed to erect and maintain proper and sufficient piers built of concrete blocks, and resting upon a concrete foundation, beneath the east wall of plaintiffs' building.

Excavating operations began on Hoffman's lot on the 16th day of April, 1924, and continued for three days, up to and including April 19. Brezinski started his excavation on Hoffman's lot, adjacent to the north end of the east wall of the garage, and continued the same for a distance of a little less than one-half the length of the garage, and thereupon Stoltz started underpinning and erected from two to four piers (plaintiffs claiming three or four, while the defendant admitted but two). Excavating operations then ceased until the 3d of May, when the defendant Brezinski continued with his work on every day up to the 6th of May, with the exception of Monday, May 5. On the 6th of May the east wall of the garage caved in, carrying with it a large part of plaintiffs' building.

The plaintiff William Schaefer testified that excavating operations were not resumed until Sunday, the 4th of May, while the testimony of Hoffman and Brezinski indicated that these operations were continued on May 3. It was also admitted by all the parties who testified upon the subject that on Monday, the 5th of May, Brezinski and his men were not engaged in excavating the basement. Brezinski testified that, when they resumed excavations in May, Schaefer agreed to notify Stoltz so that he might be on hand to support the wall. Brezinski also testified that, when he resumed the excavating in May, he told Schaefer that he “needn't worry; that he would take care of the support and see that everything was all right; that they were digging in clay; and that it would be pretty hard.” Stoltz testified that Brezinski told him that he would notify him of his resumption of work in Hoffman's basement.

On Sunday, May 4, Schaefer attempted to reach Stoltz by telephone to request him to be present on that day so that the building might be supported, but he was not available, as he was out on a fishing expedition. On the following Monday Schaefer again attempted to communicate with Stoltz and ask him to protect his interests in connection with the wall in question, and he was then informed that Stoltz had not yet returned from his fishing expedition. On Tuesday Schaefer again made an effort to secure Stoltz upon the job, but in vain, as on that day he was attending a funeral many miles away from the city of Milwaukee. On Tuesday morning at about 8:30 o'clock Schaefer appeared to be considerably worried, and Brezinski at that time expressed the view that there was no need for worry, that the soil consisted of hard clay, like concrete, and that in case anything happened he would protect his (Schaefer's) interests. At about 11 o'clock in the forenoon on the 6th day of May the east wall fell, and Stoltz did not appear upon the scene until late in the afternoon of that day, when he arrived with his men in order to perform his contract. Schaefer testified that he at no time understood from his conversation with the defendant Brezinski that the latter was to support the building by the construction of piers.

The case was submitted to the jury upon a special verdict, and the jury found: (1) That the defendant Brezinski was guilty of a want of ordinary care in the manner in which he made the excavation on the lot of defendant Hoffman; (2) that such negligence was the proximate cause of the cave-in; (3) that the defendant Brezinski in excavating for the basement on the lot of the defendant Hoffman did not excavate beyond the lot line and into plaintiffs' soil; (4) that the plaintiffs were not guilty of any want of ordinary care as to the protection of their own property, which proximately contributed to their damage.

Upon motion of defendants' counsel the court changed the answer of the jury to the first question of the special verdict from “Yes” to “No,” and thereupon granted the motion of the defendants for judgment upon the verdict as so changed, dismissing plaintiffs' complaint, with costs. The judgment having been entered as aforesaid, plaintiffs have prosecuted this appeal.

Cannon & Waldron, of Milwaukee, for appellants.

Frank X. Boden, of Milwaukee, for respondents.

DOERFLER, J.

[1] When the plaintiffs excavated for the basement of their garage, they removed the lateral support to which Hoffman's lot was entitled for a depth of four feet, and in place thereof substituted a concrete wall. The defendant Hoffman's plans called for a basement extending to a depth of three feet beyond that of the plaintiffs'. The plaintiffs, in law, therefore, when they dug their excavation, were legally bound to protect the defendant Hoffman's lot, in its natural condition, from damage resulting from the removal of the lateral support. On the other hand, when the defendant Hoffman excavated below the level of the plaintiffs' basement, he assumed a similar obligation towards the plaintiffs' property.

[2] Thus far we have confined ourselves solely to mutual obligations of adjoining property owners with respect to the soil in its natural condition. Where, however, the soil of an adjoining landowner, at or near the dividing line, is burdened with the weight of a structure erected thereon, such additional weight must be cared for and protected by the owner of the premises upon which the structure is erected, if his adjoining landowner proceeds to excavate and gives timely notice of his intentions so to do.

[3][4] It is said in the law that, wherever there is a right, there is a corresponding obligation, and...