Kremsreiter v. Boddenhagen

173 N.W. 295, 169 Wis. 515, 1919 Wisc. LEXIS 193

• Court: Wisconsin Supreme Court
• Decided: June 25, 1919
• Status: Published

Opinion

Winslow, C. J.

The appellants’ first claim is that because Kremsreiter was in possession of his house on lot 5 when the lease was made and because the lease described the property as certain lots in a subdivision, the respondent lessees thereby had notice of the fact that Kremsreiter must have a right of access somewhere across the reilted property and also of the fact that there were or might be streets upon the property which could not be closed.

We cannot agree with this contention. Of course, as against Kremsreiter, his actual possession of his lots put the lessees upon inquiry as to his rights and they were charged with notice thereof, but as to the Boddenhagens the situation is very different. It is established in this court that where, as in the present case, a vendor points out the boundaries of land which he is selling, the vendee is entitled to rely thereon, and the vendor must point them out correctly under penalty of responding in damages to a vendee who is ignorant of the real facts. Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432; Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88.

The appellants’ second claim is that no legal damages are shown. The damages are measured by the difference between the rental value of the premises as represented and the rental value as they actually were. Pewaukee M. Co. v. Howitt, 86 Wis. 270, 277, 56 N. W. 784. The trial judge found that by reason of the removal of the fences the lessees lost the use of the property for baseball and athletic purposes for two and one-half years and that the loss amounted to' $400 per year, or $1,000 in all. Deducting from this sum the rental which they would have to pay for that time (-viz. $250), the total loss in value of the leasehold would be $750.

We are unable to agree with this conclusion. In the first place it appears affirmatively that the only revenues received by the lessees were from the rental of the sign privileges and the rental for baseball games. Whether the grounds were suitable and could be profitably used for football and skating purposes were matters of considerable doubt under the evidence, but in any event no attempt was made to use them for those purposes and the amounts that might be realized in such uses were purely speculative and conjectural and would fttrnish no basis for the assessment of damages. There is no evidence to show that the rental value of the sign privilege is any less since the removal of the fence than it 'was before. So, in considering the question of the difference m rental value of the premises, the only substantial element that can be considered is the loss of their use for baseball purposes. But the difficulty here is that the testimony is quite conclusive to the effect that the use of the premises for baseball was given up because of two entirely different considerations, namely, the constant and serious difficulties with Kremsreiter, and the fact thát the diamond had to be laid out so that the batter faced northeast, making the field a “sun-field” in the afternoon and undesirable on that account. On this subject Bernhardt, the principal lessee, testified: “There was a lot of trouble arose at the time, this man owned the grounds out there, we could not play there, he was belly-aching we were running into his cabbage patch.” Deisinger, another lessee, testified: “Kremsreiter wouldn’t allow us to get our ball; they would talk to him and he wouldn’t listen to us, and we had trouble with him; that is the reason we didn’t finish the season.” Neuens, another lessee, testified that on account of the sun-field and the threats of Kremsreiter, who would not give their balls back, “We thought the best thing would be not to play any more ball in that lot.” Mischler, the other lessee, says: “The only reason I know why they discontinued using the park in 1915 was they got into trouble with this man about his garden and things of that sort, and on account of the condition of the field and the disbanding of this [the Blatz] team.”

But even if the removal of the fence were shown to be the thing which destroyed the usefulness of the park for baseball purposes, another consideration makes it impossible to base any damages upon that fact. The only baseball games which brought in any considerable revenue were Sunday games. The use of the park for Sunday games was unquestionably illegal under sec. 4595, Stats., which prohibits any one from being present at “any dancing or public diversion, show or entertainment” and from taking part in “any sport, game, or play” on Sunday. Profits made on Sundays from a violation of the Sunday law cannot form any legal basis for the estimate of damages. Raynor v. Valentin Blatz B. Co. 100 Wis. 414, 76 N. W. 343.

It is true there is evidence of the renting of the park to a local league for baseball on Saturday afternoons in 1916 for $50, but it appears that after a few games this league quit on account of the trouble with Kremsreiter.

We have been unable to discover in the evidence any solid foundation for the estimate of any legal damages, hence there must be a reversal of the judgment to that extent.

By the Court. — That part of the judgment appealed from is reversed, with costs in favor of the defendants Bodden-hagen against the- cross-complainants, and the action is remanded with directions to dismiss the cross-complaint on the merits.