Mueller Real Estate & Investment Co. v. Cohen

Siebeceee,, J. The facts shown by the plaintiff’s evidence are undisputed. The defendant offered no evidence. As appears in the above statement, the water from the defendant’s dwelling house was collected and, by means of a conductor pipe, was discharged at a place within a few feet from [465] the plaintiff’s building and thence carried in a current against the wall of plaintiff’s building and percolated through the wall into the basement in sufficient quantities so as to collect at times to the depth of about a foot. In Huber v. Stark, 124 Wis. 359, 102 N. W. 12, it was held: “No one has a right, by an artificial structure of any kind upon his own land, to cause the water which falls and accumulates thereon in rain or snow to be discharged upon the land of an adjacent proprietor. Such an erection, if it occasions the water to flow, either in the form of a current or stream, or only in drops, works a violation of the adjoining proprietor’s right of property, and cannot be justified, unless a right is shown by express grant or by prescription.” The instant case is one of this class and is governed by the rule applied in that case. The circuit court awarded damages for the full amount of the cost of repairs of the parts of the building affected by the water. Defendant claims that this is excessive, because the building, after the repairs had been made, was in better condition than it was before it was injured by the water. True, the evidence of one witness indicates this last, but there is no evidence to show what such excess is, if anything. The defendant offered no evidence in the case. The plaintiff claimed that the damage amounted to the cost of making the repairs. This state of evidence furnished the circuit court but one basis on which to calculate the damages, namely, the cost of repairs. We cannot say that the conclusion of the court on this question is against the clear preponderance of the evidence. On appeal the circuit court was called on to affirm the judgment of the civil court or modify and affirm it as modified, unless by reason of manifest prejudicial error the defendant had not had a fair trial in the civil court. It appears that prejudicial error had been committed. The circuit court had to ascertain whether the error could be corrected on the record and substantial justice be done and the [466] rights of the parties be preserved without granting a new-trial. The record discloses that the issues were tried by the-judge of the civil court; that he had made findings of fact, and conclusions of law in the case on the issues which in his-opinion conclusively determined the rights of the parties.. Under the disposition of the case by the civil court the inquiry as to plaintiff’s damages became immaterial and therefore the court omitted to make a finding on this question.. This omission cast on the circuit court the duty to determine this question on the record on appeal if the rights of the parties could be observed and protected and substantial justice-could be done, without ordering the action to be retried in the-eireuit court in the manner as if originally brought there. The parties had litigated the issues in the civil court and. submitted the case for final determination. This furnished a sufficient basis to the circuit court for a final determination of the case on the record before it. Sec. 28, ch. 549, Laws of 1909; Eder v. Grifka, 149 Wis. 606, 136 N. W. 154; Hanna v. C., M. & St. P. R. Co. 156 Wis. 626, 146 N. W. 878; Pennsylvania C. & S. Co. v. Schmidt, 155 Wis. 242, 144 N. W. 283. The circuit court properly-awarded judgment on the record in plaintiff’s favor for recovery of its damages. By the Court. — The judgment and order appealed from-, are affirmed. BaRNes, J., dissents.