Wisconsin Telephone Co. v. Reynolds

• Decision Date: 07 January 1958
• Citation: 87 N.W.2d 285,2 Wis.2d 649
• Parties: WISCONSIN TELEPHONE CO., a Wis. Corporation, Respondent, v. Francis REYNOLDS, an individual d/b/a Briteches Trucking & Grading Co., Appellant.
• Court: Wisconsin Supreme Court

Page 285

87 N.W.2d 285

2 Wis.2d 649

WISCONSIN TELEPHONE CO., a Wis. Corporation, Respondent, v. Francis REYNOLDS, an individual d/b/a Briteches Trucking &amp Grading Co., Appellant.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Kivett & Kasdorf, Milwaukee, Alan M. Clack, Milwaukee, of counsel, for appellant.

Love, Davis, McGraw & Frey, Keith Frey & Robert T. McGraw, Waukesha, for respondent.

STEINLE, Justice.

Under right of an easement the plaintiff, Wisconsin Telephone Company, maintained an underground cable inside a conduit on a privately owned tract of land located south of the Bluemound Road and east of North 114th Street in the city of Wauwatosa. About three weeks prior to September 17, 1953 the plaintiff was notified that the owner intended to have the grade of the land lowered. Shortly after receipt of such notice the plaintiff caused 4 or 5 stakes to be placed on the land indicating the location of the cable. The stakes contained markings showing that the depth of the cable varied between five and seven feet below the course as staked out. The defendant, Francis Reynolds, was engaged by the owner to perform the grading service. About three days before September 17, 1953 a representative of the plaintiff company informed the defendant's power shovel operator that the company wanted to be notified when the grading operation reached within ten feet of the cable, and advised that the company would then send its crew of underground workmen to assist in the excavation and would relocate the cable at a lower level. Between 7:30 and 7:45 a. m. on September 17, 1953 the plaintiff received a telephone call from the defendant advising that the defendant's grading operations had come to within ten feet of the cable. The plaintiff instructed the defendant not to go any closer to the cable, and stated that its underground crew would be on hand shortly. The plaintiff's crew of workmen arrived at about 10:00 a. m. Between the time of said telephone call and the arrival of plaintiff's workmen, the defendant's power shovel operator continued to remove earth in the close vicinity of the cable. During the course of such operation, the cable was broken by the power shovel. The defendant's employees had excavated 30 feet of the cable before the break occurred. There is evidence of record that no authority was given by the plaintiff to the defendant to extract the cable from its position. There is also evidence to the effect that the defendant's power shovel operator knew that the procedure was dangerous, and that he was taking a calculated risk in proceeding to dig out the cable without direction or supervision from plaintiff's employees. The power shovel operator testified that he continued to excavate in the proximity of the cable because we wanted to favor both the plaintiff and his employer. As a result of the breaking of the cable by the defendant, it was necessary to splice 75 feet of the cable. Only 15 feet of splicing would have been required in the relocation of the cable had it not been broken. The cost of repairs as indicated by plaintiff's accounting records, was $389.06.

The defendant seeks reversal of the judgment and dismissal of the complaint on grounds principally (a) that the plaintiff, as an easement holder, had no right to supervise the grading of the lot; (b) that there was no evidence indicating that the grading was not done in a manner conforming to customary procedure; (c) that the plaintiff was not damaged; (d) that proof of the claimed damages was insufficient to support the judgment.

With reference to the first two of said assignments of error, the defendant challenges the trial court's finding of fact wherein it was determined: 'That contrary to the plaintiff's instructions and without the authorization or permission of the plaintiff and without waiting for the plaintiff's supervision and for the arrival of its underground cable crew the defendant continued to excavate and grade said area and in the course of operating a power shovel the defendant's agent and employee carelessly and negligently severed, broke and damaged the said underground conduit and cable belonging to the plaintiff.'

The defendant submits that plaintiff's easement in no way restricted the property owner, or the men engaged to work for him, with respect to altering the surface of the property.

While the owner of property subject to an easement may make all proper use of his land including the right to make changes in or upon it, nevertheless such owner may not unreasonably interfere with the use by the easement holder.

In Wallis v. First Nat. Bank, 1914, 155 Wis. 306, 318, 143 N.W. 670, 674, it was said:

'The owner of property subject to an easement has the right to make incidental changes in the real estate over which the easement extends, provided there is no substantial impairment of the right granted.'

In the instant case the property owner and his contractor were entitled to grade the land, but they could not with impunity damage the plaintiff's personal property...