Winchester v. Point

• Decision Date: 23 October 1883
• Citation: 17 N.W. 3,58 Wis. 350
• Parties: WINCHESTER v. STEVENS POINT.
• Court: Wisconsin Supreme Court

58 Wis. 350

17 N.W. 3

WINCHESTER

v.STEVENS POINT.

Supreme Court of Wisconsin.

Filed October 23, 1883.

Appeal from circuit court, Portage county.Raymond & Haseltine, for appellant, City of Stevens Point.

G. W. Cate, for respondent, Sarah Winchester.

COLE, C. J.

It is plain that the plaintiff in her complaint does not treat this as an ordinary action of trespass to the realty. She alleges that she was the owner in fee-simple and in the actual possession of the premises described. Her gravamen is that the defendant city has constructed a dike or embankment in front of these premises, which renders them inaccessible, and that this embankment dams up the water and sets it back upon her lots. Then comes the averment, “by means whereof the said premises are greatly diminished in value, and the plaintiff has sustained damages in the sum of $700.” If there could be any doubt that the action is for a permanent injury to the realty, it would be removed by the character of the evidence offered on the part of the plaintiff on the trial to sustain her case. For instance, the witness Packard was asked what, in his opinion, was the damage to the premises arising from the building of the dikes, and then how much they were damaged in value by reason of the damming up of the water and settling it about the premises. This and other testimony, of the same character, was given by plaintiff against defendant's objection. The court, also, in one portion of its charge, in effect told the jury that the plaintiff, in order to recover, must satisfy them that she was the owner of the property alleged to be injured. These remarks are made for the purpose of showing that the action is not for the mere injury to the possession, but is to recover damages for an injury to the freehold. That being the case, it was essential for the plaintiff to show a title beyond what would be necessary to maintain trespass; for the question of title was made a material issue by the pleadings. There was no dispute about plaintiff's possession. But she attempted to prove a good paper title and failed. Nevertheless, she recovered for the permanent depreciation in the value of the property. The question is, can the recovery be sustained upon the evidence given?

It seems to be assumed that damages for a permanent injury to the freehold--that is, an injury which not only affects the present use and enjoyment of the property, but its value for all future time--are recoverable in this action, though it is apparent the embankment may be removed any day, or so reduced in height as to restore the property to its condition when she acquired it. There doubtless may be an injury to the freehold which is permanent in its character; but was this such an one? The suggestion is made without deciding the point. But what proof of title was it necessary for the plaintiff to make in order to maintain the action on the theory upon which it was tried? Her counsel contends it was sufficient for her to show she was in actual possession under claim of title. He also says that she established a good paper title; but this certainly is a mistake. Not to dwell on other defects in her claim of title, it will be noticed that the deeds from Kingston to Fay, and from Solomon Smith to William Randall, each had but one subscribing witness. The former was excluded; the latter was admitted in evidence against objection. Neither of the deeds was entitled to be recorded, and could not be proven by the record as the last one was.

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