Kastner v. Weber

Action begun by Edna Kastner on May 23, 1945, to enjoin John C. Weber from committing waste and wilful destruction of property. Judgment for plaintiff. Defendant appeals.

On April 5, 1945, plaintiff became the owner of the premises referred to below as lot 6. At that time the defendant, a real-estate broker, was a tenant occupying as his office the front half of the first floor of the building on said lot. The defendant then was also the leaseholder of lot 5, immediately to the east of lot 6. Lot 5 was empty except for a concrete garage at the rear. Defendant's lease of lot 5 was for a year, beginning January 1, 1945.

To the east of the building on lot 6 and running the entire length thereof, is a cement sidewalk. A porch in about the middle of the building covers the sidewalk. There are steps front and back to allow walking over the porch. To the rear of the porch is a wooden trap door leading to the basement. Opposite the trap door the concrete sidewalk turns to the east so that it encroaches on lot 5. There is a concrete retaining wall extending along the east edge of the sidewalk from the porch to the rear of the building, projecting 2.6 feet onto lot 5. The evidence shows that the porch encroaches .09 feet on lot 5, that the porch roof with eave trough extends about 3 feet over the lot line and that the barn in the rear of plaintiff's property encroaches .62 feet on lot 5.

Apparently at one time lots 5 and 6 were owned by one Farchmin who operated a bakery in the building on lot 6. Lot 5 was used in loading things to and from the side porch of the building. The defendant had been a tenant in the building on lot 6 for over eight years when he leased lot 5 for a year.

On April 19, 1945, plaintiff served defendant with notice to quit May 31, 1945. On May 3, 1945, he was served with a three-day notice to vacate the premises for nonpayment of rent. However, he paid the rent and remained until May 31, 1945.

On May 16, 1945, defendant removed the top two steps on the north side of the porch. This necessitated the tenants' walking around the porch to the steps on the south side, and in walking around the porch they walked on lot 5.

In May the defendant caused street sweepings to be dumped on the sidewalk to the east of plaintiff's buildings, making a pile reaching up to one of the doors of the building. He caused the sewer to be clogged with rubbish. He dug three holes in the cement sidewalk and put posts therein, claiming this was for the purpose of erecting a fence on lot 5.

It is for this conduct on the defendant's part that the plaintiff sought and was granted on March 15, 1946, a permanent injunction enjoining the defendant from committing waste and wilful destruction of property and judgment for $70 damages with costs and disbursements.

Defendant interposed a counterclaim and asked judgment enjoining the plaintiff from continuing to trespass on lot 5. The trial court ruled that the allegations of the counterclaim were not proven, that defendant was not entitled to the aid of a court of equity since he caused some of the trespassing, and that damages claimed by him would be negligible as limited to the term of his tenancy. The appellant's conduct was clearly tortious when he removed two of the porch steps, when he caused rubbish to be dumped where it obstructed the side entrance to the building on lot 6 and plugged the sewer, and when he had holes dug in the respondent's sidewalk. He was at that time a tenant of the respondent.

For injury to the respondent by this conduct on the part of the appellant, the respondent was rightly awarded damages by the trial court in the amount of what it would reasonably cost to restore the property. Chapleau v. Manhattan Oil Co. (1922) 178 Wis. 545, 550, 190 N.W. 361.

In his counterclaim the appellant complains of the encroachments on lot 5 and of trespassing on the part of the respondent, her tenants, servants, and agents. In evaluating his counterclaim, it must be remembered that he was not the owner of that lot, but was merely the tenant in possession by virtue of a one-year lease, expiring January 1, 1946.

The estate of the owner of the fee may be directly affected by the encroachments. But she has not as yet seen fit to come into court seeking relief. Appellant knew of the existing condition years before he entered into his lease of lot 5. He cannot avail himself of the cause of action belonging to his landlord as a ground for his counterclaim. 2 Tiffany, Landlord and Tenant, p. 2105, sec. 352.

As to any cause of action for disturbing him in the enjoyment of his possession, he has not proven any interference by respondent with his use of the premises as he took them from his landlord. There is no evidence to warrant a finding that the already existing slight encroachments, under the circumstances, have in the hands of the respondent or by reason of her acts, resulted in any damage to his possession considered as an estate. He made his bargain with reference to the lease, knowing of the encroachments which prevent a use of the lot to the very extreme limits of its boundaries. The other persons whom he describes as trespassers are not parties and were not acting in the interest of respondent.

The learned trial judge reached a proper result. There was no injury to enjoyment and occupation of the leased premises for which the respondent is responsible occurring after appellant leased lot 5.

By the Court. — Judgment affirmed.