March 6, 1959 —
April 7, 1959.
APPEAL from an order of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by E. W. Hooker of Waupun.
For the respondents the cause was submitted on the brief of John P. McGalloway, Sr., of Fond du Lac.
On May 6, 1958, Nettie Gerrits commenced an action of ejectment against Harold Blow, his wife, and others.
Miss Gerrits owns a parcel of land on the north side of Main street in Waupun, and Harold Blow and his wife own a parcel of land immediately east of the Gerrits land. There is a store building on each parcel and prior to 1952 both these buildings were 85 feet in depth. In 1884 the then owners of these parcels had executed a party-wall agreement under which for a distance of 85 feet the east three feet of the Gerrits property and the west three feet of the Blow property were made subject to the use of the owners of both, jointly and in common, for a party wall, stairways, halls, and stairway partitions. The party wall was constructed upon the portion of the six-foot strip now owned by Miss Gerrits. A front and rear stairway and a hall were constructed east of the party wall.
In 1952 the Blows extended their building to the north a distance of 45.08 feet and the west wall of the addition was constructed on the east 1.75 feet of Miss Gerrits' land. In making the extension the door which gave access to the rear stairway was blocked off. In 1957 the Blows built a canopy across the front of the building and across about four feet of the front of Miss Gerrits' building.
The facts just recited appeared in the complaint. The Blows did not deny any allegations of the complaint but alleged in their answer that Miss Gerrits had agreed to the northward extension of the building and that the Blows had constructed it in reliance upon her consent; that the work was done with her knowledge and without objection; that because of this conduct she was estopped from making any objection; and that she never participated in any repairs to the stairway, although it was in a ruinous condition, and that she sustained no damage because she had virtually abandoned the stairway.
With reference to the canopy, the Blows alleged that it is a benefit to Miss Gerrits because it serves as a protection to the portion of her property over which it extends.
Miss Gerrits moved for summary judgment. In a supporting affidavit she asserted that she had never discussed with the Blows their plans to extend the original party wall and did not agree to the plans; that she had no knowledge of the extension of the wall until it was nearly completed and that she never consented to nor acquiesced in the extension; that she never intended to abandon the party stairway and has never refused to contribute to repairs of the same. Her counsel filed an affidavit incorporating portions of an adverse examination of Mr. Blow. He testified that before he built the addition, it was necessary for him to obtain abandonment of an alley, which apparently crossed the rear portion of the Gerrits and Blow properties as well as the other properties in the same block, and that he had to obtain the signatures of all the owners in support of the abandonment. He talked with Miss Gerrits at the time he obtained her signature. Some of the questions and answers are as follows:
"Q. . . . I just asked you what you told Miss Gerrits? A. Before Miss Gerrits signed it I tried to give her a word picture of what I was going to do. I told her I was going to extend the two stone walls of the store building 45 feet north. . . .
"Q. I'm asking you if you knew that was her property at that time? A. I assumed it was a party wall. . . .
"Q. Does the paper that she signed say anything about the construction of the building? A. No. . . .
"Q. She didn't consent to any building on her property? A. No. . . .
"Q. Did you tell Miss Gerrits that you were going to close the back door? A. No. I told her I was going to extend the building from just inside the west of her wall — the 45 feet. . . .
"Q. Did you tell Miss Gerrits that you were going to build on her property? A. No. I just told her I was going to extend the building. . . .
"Q. From the time that she signed this consent to the vacation of the alley until last fall you never talked about closing tip the door? A. That is the only conversation."
In an affidavit in opposition to the motion, Blow stated that the construction of the addition was contingent on the vacation of the alley; that when he talked with her about the vacation of the alley, he told her that he was extending the party wall 45 feet north from the point inside the end of her building which of necessity meant that the back entrance would be closed and that to any statement made by Blow at that time, the plaintiff made no protest whatsoever; that at no time during the course of the construction of the addition did the plaintiff make any protest and that during the years from the completion of the building until the commencement of the action, the plaintiff had made no objection. He further stated that plaintiff had done nothing for thirty years or more in the way of making improvements or keeping up the staircase, hall, or party wall; that the rear entrance was seldom used, if ever; that the stairway leading to the second floor was in a bad state of disrepair and dangerous and that plaintiff paid no attention to it. He further stated with respect to the canopy in front that it extends over the stairway and may involve the premises of the plaintiff to some slight extent, but that it presents a favorable appearance and is a protection to the property which it shelters.
The circuit court was of the opinion that the defense of estoppel pleaded by the Blows raised an issue of fact not resolved by the affidavits and therefore to be determined upon evidence. The motion for summary judgment was denied September 11, 1958. Plaintiff appealed.
The answer alleged that Miss Gerrits agreed and consented to the northward extension of the party wall. The affidavits made it plain that there was no agreement nor consent.
Miss Gerrits' affidavit denied that she had discussed the plans to extend the wall, that she was acquainted with the plans, and that she knew of the construction until it was nearly completed.
The most that was shown for defendants was that Blow and Miss Gerrits had a conversation about defendants' desire to vacate the alley and Miss Gerrits consented to that. Blow gave her a "word picture" of his plans, apparently for the purpose of explaining his request about the alley. Except as the "extension" of the wall would imply that the extension would be on her land because the old wall is there, she was given no information that the wall would rest upon her land or shut off the rear entrance.
As to acquiescence on her part in the construction, her affidavit asserted that she did not know of the construction until it was nearly completed. Blow countered only with the assertions that the work was done in plain sight; that Miss Gerrits lived in Waupun and was up and around; and that Waupun is a small community.
After resolving any conflicts in the affidavits by assuming the truth of the facts stated by Blow, we conclude that such facts would not support a finding that Miss Gerrits knowingly acquiesced in the construction or maintained silence under circumstances where her silence would mislead Blow into doing that which he would not have done but for such silence.
The Blows have asserted that the encroaching canopy at the front is a benefit to the Gerrits building. That may be true, but it is not a defense.
Judgment should have been granted.
The complaint asked, in addition to judgment for possession and removal of encroachments, that defendants be required to remove that portion of the new addition blocking the entrance to the rear stairway so that plaintiff may have access. To the extent that this prayer asks removal of the structure from any part of defendants' land, plaintiff has failed to prove facts which would be a basis for judgment. The extent of the rights of the two owners to use each other's property north of the 85-foot strip is not spelled out in the party-wall agreement and would depend upon implications from the construction of a rear stairway and rear entrance and upon facts as to the use or abandonment of the rear stairway and entrance, some of which are in dispute. Accordingly, the judgment should not include a requirement that defendants make any part of their land available to plaintiff's use for access to the rear entrance.
The judgment will, of course, be subject to sec. 275.29, Stats., permitting a defendant, upon certain conditions, to elect to purchase the land upon which a building encroaches. Plaintiff's counsel, on oral argument, suggested that this election will be available to defendants.
By the Court. — Order reversed, cause remanded for entry of judgment for plaintiff consistent with the opinion filed herein.