Roberts v. Gerber

Crownhart, J. The defendants advisedly concede that the judgment of the circuit court, as affirmed by this court in Roberts v. Gerber, 187 Wis. 282, 202 N. W. 701, is the law of the case and cannot now be changed or modified. The defendants insist, however, that they “have performed the judgment in this case in all of its material and substantial provisions and features.” Without doubt this court has power to review the contempt proceedings to ascertain if the judgment has been performed. The circuit court found that the defendants had in part eliminated objectionable features in the community arrangements of their lots and buildings, but the circuit court also found that the rearrangement of the plot of ground and the houses thereon was not a compliance with the judgment, to wit: “That the restrictive agreement involved provides that the tract in question be preserved as first-class residence property, and that the houses now on the individually owned lots of land of defendants Shields, Schrom, and Faulkner are the same houses that were ordered to be removed by the [518] judgment herein; that said houses are not first-class residences within the meaning of said restrictive agreement, either as to type or use, and violate said agreement and the judgment herein, aside from the club or community features that are forbidden by said agreement and judgment and which have been abandoned.” The term “first-class residence property” is very general, but as used in the original deed it has a meaning of common understanding which had to be applied to the facts by the circuit court. That court was in a better position to apply the restrictive clause to the actual situation, having heard the evidence and having had a view of the premises, than is this court. It is certain that defendants have not fully complied with the judgment of the court, which required the defendants to remove the buildings from the lot upon w’hich they were erected, and from the tract known as “Forest Glen.” The defendants have rearranged the lot and to some extent the buildings thereon, but three of the four buildings erected on the lot by defendants still remain thereon and within the “Forest Glen” plot, contrary to the mandate of the court. That judgment was here affirmed in to to, on appeal, and on rehearing. It cannot now be said that that part of the judgment was overlooked or disregarded by the parties or by this court, nor can it be said that it was not a material and substantial part of the judgment. While full compliance with the judgment will work a hardship on defendants, it should be said that the defendants entered upon the scheme fully aware of the restrictive provisions, arid with warning that such restriction would be enforced. Hence, their misfortune comes as the result of chances they deliberately took unto themselves. By the Court. — The order of the circuit court is affirmed. Stevens, J., dissents.