Summary
In Herbert A. Nieman Co. v. Holton Hunkel Greenhouse Co., 248 Wis. 324, 21 N.W.2d 637, it was held that damages could not be limited to the value of soil removed from land where the damage to the land itself exceeded the value of the soil removed.
Summary of this case from Loehde v. Wisconsin River Power CompanyOpinion
January 8, 1946. —
February 15, 1946.
APPEAL from a judgment of the circuit court for Ozaukee county: EDWARD J. GEHL, Circuit Judge. Affirmed.
For the appellant there was a brief by Walter D. Corrigan, Sr., and Thomas M. Corrigan, both of Milwaukee, and oral argument by Walter D. Corrigan, Sr.
For the respondent there was a brief by Schanen Schanen of Port Washington, attorneys, and Arthur Wickham of Milwaukee of counsel, and oral argument by William F. Schanen.
Trespass. The plaintiff, Herbert A. Nieman Company, a corporation, commenced this action on December 29, 1943, against the defendant, Holton Hunkel Greenhouse Company, a corporation, to recover damages sustained by it by reason of the defendant digging up and hauling away soil from a tract of wooded land owned by the plaintiff. The tract was ten acres in extent, three acres of which was cultivated. For the tract the plaintiff had paid $800. In October, 1943, the defendant's employees dug and took away forty-five cubic yards of top soil from plaintiff's land. As to this fact there is no dispute.
Upon the trial before the court the plaintiff testified that the damage to the property was in the sum of $500. Dr. A.H. Carthaus, a banker and extensive dealer in real estate in that community, testified the damages were $1,000. For the defendant, Edwin C. Hunkel testified that soil of the character removed could have been purchased in that vicinity in 1943 from anywhere from seventy-five cents to $1.25 per yard. Soil of that type was available on the adjoining premises; that it would cost $5 to replace the forty-five yards taken in addition to the cost of the soil; that it would cost about $8 to spread the two piles of dirt dug up and not removed. There were negotiations as to the replacement of the soil but no agreement was reached. William W. Morris, forester for the agricultural department of the state, called as a witness for the defendant, testified there would be no damage to the trees; that the soil was of a low peat type; that the ten-acre tract was not worth less because of the excavation; that the value had not been lessened. On cross-examination he said:
"It does not surprise me that the plaintiff paid $80 per acre for this land. I say that after a man paid that price before any excavation, it would reduce its value by $50."
The court viewed the premises and found from the view and the evidence that plaintiff's damage caused by the removal of the soil by the defendant, damaged the real property in question in the amount of $500. Judgment was entered accordingly, on August 27, 1945, from which the defendant appeals.
Upon this appeal the defendant makes two principal contentions: (1) That the evidence does not sustain the court's findings as to damages; (2) that under the undisputed facts, the damages could not exceed $66.25.
(1) While there is a wide discrepancy as to the damage done by the excavation and removal of the earth, as between the witnesses for the plaintiff and those for the defendant, it cannot be said that the testimony which tends to support the conclusion reached by the trial court is incredible or that the witnesses are unworthy of belief. Therefore we cannot disturb the findings of the trial court.
(2) It is claimed on behalf of the defendant that under the evidence the value of the material removed does not exceed $66.25 and the damages should be limited to that amount. This contention cannot be sustained. The testimony of the plaintiff's witnesses tends to show that the principal damage was not the removal of the earth but the damage done to the standing timber. In a case of this kind the amount of damages cannot be limited merely to the value of the material removed and the trial court correctly so held. The trial court applied the correct rule of damages, — that is, — the damage was the difference between the value of the property before and after the taking. Miller v. Neale (1909), 137 Wis. 426, 119 N.W. 94; Pedelty v. Wisconsin Zinc Co. (1912) 148 Wis. 245, 134 N.W. 356.
In this connection, it is further contended by the defendant that the court was in error in permitting plaintiff's witnesses to testify as to the amount of damage. It is argued that the witnesses should have been asked, what was the value of the premises before taking and after taking? As an illustration, the witness, Dr. A. H. Carthaus, was asked these questions:
Q. What was the damage, if any, did this tract sustain as a result of these excavations, this soil, as you observed it as you viewed it the last time? A. I would say a thousand dollars.
Q. How do you analyze these damages? A. The most damage, what we wanted it for was the trees. I think that was the most damage, because the roots of the trees were exposed. By exposing the roots of the trees you kill the trees in a very few years.
If counsel was dissatisfied with the form of the question put to the witness he might have inquired on cross-examination as to how the witness arrived at the conclusion to which he testified. He might have asked the witness as to the value of the land before and after taking.
The case is argued here as if the trial had been by jury. In reviewing the findings of a trial court, either in a civil or criminal case, where the case is tried without a jury, on appeal it will be presumed that improper evidence taken under objection was given no Weight in reaching a final conclusion unless the contrary appears. On appeal the admission of improper evidence will be regarded harmless unless it clearly appears that the finding would probably be different if it had not been admitted. Birmingham v. State (1938), 228 Wis. 448, 279 N.W. 15.
In this case the trial court had the advantage of a view of the premises in the light of which he could and did consider the evidence offered upon the trial, applied the correct rule of law, and held that the damage recoverable in this action was not confined to the value of the material taken.
By the Court. — Judgment affirmed.