Schiro v. Oriental Realty Co.

Decision Date03 April 1956
Citation73 A.L.R.2d 1368,76 N.W.2d 355,272 Wis. 537
Parties, 73 A.L.R.2d 1368 Katherine SCHIRO et al., Respondents, v. ORIENTAL REALTY CO., a Wis. Corporation, Appellant.
CourtWisconsin Supreme Court

Quarles, Spence & Quarles, Milwaukee, Norman C. Skogstad and Reuben W. Peterson Jr., Milwaukee, of counsel, for appellant.

W. G. Cavanaugh, Jr., Milwaukee, Arlo McKinnon, Milwaukee, of counsel, for respondents.

CURRIE, Justice.

The first issue raised by the defendant on this appeal is whether there is any credible evidence to sustain the jury's finding that Mrs. Schiro was on her own property at the time she lost her balance and fell. It is defendant's contention that Mrs. Schiro was walking at the time upon land owned by defendant. If this contention were found to be correct, then defendant would be entitled to judgment dismissing the complaint. This is because no duty exists on the part of a landowner toward a trespasser except to refrain from wilfully or wantonly injuring him. Nalepinski v. Durner, 1951, 259 Wis. 583, 49 N.W.2d 601.

The amended complaint of the plaintiffs alleged that the retaining wall was 'located on the west boundary of the defendant's property'. Defendant's answer contained no denial of this allegation. Neither did the answer set forth any defense that Mrs. Schiro was a trespasser at the time she lost her balance and fell. Therefore, on this state of the pleadings the allegation of the amended complaint, as to the wall forming the west boundary of defendant's premises, stood admitted.

The testimony on the part of the plaintiffs bearing on such issue was as follows: The four clothes poles were erected by the plaintiffs on the narrow strip between the boardwalk and the wall in 1928 and from that time to the date of the accident Mrs. Schiro regularly hung her washing on the clotheslines strung from the cross-arms of such clothes poles and in doing so made use of such strip of land. Mr. Schiro during such period kept the grass on such strip mowed every week or ten days during the growing season. In so doing he thought that the east line of plaintiffs' property was the west face of the retaining wall.

As its last witness, the defendant called one Connell, a surveyor, who testified to having surveyed the east lot line of plaintiffs' premises. He did not directly testify that he established such line on the basis of the description contained in plaintiffs' deed, but we assume for the purpose of this opinion that is what he did. Such survey placed this lot line very close to the east edge of the boardwalk so that very nearly all of the strip of lawn, on which the plaintiffs' clothes poles were set and on which Mrs. Schiro was walking sideways at the time she lost her balance and fell, lay to the east of such line. Even after the offering of such testimony, defendant made no motion to amend its answer to conform to the proof. So long as defendant did not move for such amendment there was no reason for plaintiffs to move to amend their complaint to allege title to the strip between the walk and wall based upon adverse possession.

There was no testimony that the defendant, or anyone other than the plaintiffs, made any use of the strip in question during the period from 1928 to the date of the accident. Thus, so far as appears from the record, the plaintiffs' use of such strip during that period was continuous and exclusive. The fact, that such acts of possession by the plaintiffs may have occurred as a result of a mistaken belief that the west surface of defendant's retaining wall constituted the true boundary line, did not prevent such acts of continuous exclusive possession extending for more than 20 years from ripening into a good title by adverse possession. Ovig v. Morrison, 1910, 142 Wis. 243, 125 N.W. 449, and note in 4 Wis. Law Rev. 41.

The trial court gave no instructions in its charge to the jury with respect to the first question of the special verdict on the effect of 20 years continuous, exclusive adverse possession of the strip in question by the plaintiffs, and none was requested. Neither did the charge make any mention of the survey made by Connell, although the jury had before it exhibits showing his location of plaintiffs' east boundary line. There was overwhelming evidence to support a jury finding that at the time of the accident the plaintiffs had title to this strip based upon adverse possession for more than 20 years. We can perceive no reason why this court should disturb the jury's answer of 'yes' to the first question of the special verdict merely because no instruction on adverse possession was given or requested.

The second issue raised by the defendant on this appeal is that the slope of the strip of lawn, on which Mrs. Schiro placed her foot and lost her balance as a result, was as a matter of law too insignificant a defect to be actionable. The strip of lawn at such point was 19 1/2 inches wide and the slope thereof from west to east was 3 inches. We consider that such a condition presents a jury issue as to whether it caused Mrs. Schiro's fall, and that this court should refuse to relieve defendant from liability on the ground that such a slope is too slight to be actionable.

The third and last point advanced by defendant is that, even assuming that defendant's failure to properly maintain its wall constituted a nuisance which interfered with the plaintiffs' use and enjoyment of their premises, nevertheless, plaintiffs are barred from recovery by application of the doctrine of assumption of risk.

The sixth question of the special verdict, 'Did the plaintiffs, Katherine Schiro, acquiesce in the dangerous condition of the defendant's retaining wall', was framed so as to submit the issue of assumption of risk. Upon motions after verdict the learned trial judge, in his memorandum decision, voiced the opinion that the evidence did not sustain the jury's answer of 'no' to such question. However, the trial court did not change such answer because of the conclusion reached that such question should not have been included in the verdict. The reason advanced for such latter conclusion was that assumption of risk is never a defense to an action grounded upon nuisance.

Apparently this court has never directly passed upon the question of whether either contributory negligence or assumption of risk may be a defense in an action for damages alleged to have been sustained as a result of a nuisance. In approaching a proper solution of this problem we deem it to be desirable to briefly analyze what is meant in legal parlance by 'nuisance'. It would be difficult to find a term which has been the subject of more mystifying confusion of utterance in the reports and texts. We have no desire to compound the confusion, but only to seek a simple and accurate definition. With such a standard as our objective, we commend the following statement by Professor Warren A. Seavey in his article entitled 'Nuisance: Contributory Negligence and Other Mysteries', 65 Harvard Law Rev., 984:

'Nuisance has been treated as if the term were so amorphous and protean as to make impossible a description of the area which it covers. However, as in the case of other words which have been used by the courts in various senses, it is worthwhile to attempt a terse description of the conduct and the results which are included in the judicial use of nuisance. As commonly used, it connotes a condition or activity which unduly interferes with the use of land or of a public place. Conduct which interferes solely with the use of a relatively small area of private land is tortious but not criminal and is called a private nuisance. Conduct which interferes with the use of a public place or with the activities of an entire community is called a public nuisance. This is criminal, and is also tortious to those persons who are specially harmed by it.'

As this court recently pointed out in Walley v. Patake, 1956, 271 Wis. 530, 541, 74 N.W.2d 130, a nuisance may be based upon either negligent or intentional conduct. See also Prosser, Law of Torts (2d ed.), p. 389, sec. 70; and Restatement, 4 Torts, ch. 40, p. 220. It would seem to follow as a matter of logic that, where the conduct causing the nuisance is negligent and not intentional, the defendant should be accorded the same defenses that would be available in any other action grounded upon negligence. This was the conclusion reached by the New York Court of Appeals in a notable opinion rendered by Chief Judge Cardozo in the case of McFarlane v. City of Niagara Falls, 1928, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1. In that case plaintiff stumbled over a fanlike projection in a public sidewalk and fell, and suit was brought against the defendant city on the ground that such sidewalk defect was the result of negligent construction by the city and constituted a nuisance. The question before the court on appeal was whether contributory negligence was a defense to the action and the court held that it was. The rationale of the opinion is convincingly set forth in the following quotation therefrom, 247 N.Y....

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