Gimbel v. Wehr, 165 Wis. 1. flush with the face of said column;" (2) that the columns supporting the Gimbel building partly within the limits of the alley are to remain without a change; (3) that the walls in the Plankinton property on the north and south sides of the alley are to remain; and (4) that Wehr has the right to use a reasonable portion of the alley on the south side of the Wehr property for support of a building on such property, provided that the alley shall be eight feet in the clear above the grade therein, which is substantially the same as the grade on the adjoining Plankinton property, must be affirmed. The evidence amply supports the finding that such encroachments within the limits of the alley do not af fect its practical usefulness and that they do not invade the right of abutting owners. The judgment expressly determines the right of abutters to build over the alley, leaving a covered way of eight feet in the clear. This is of much weight to sustain the court's conclusions that the supports of the buildings as they have existed within the margins of the alley were deemed by the abutting owners as necessary and reasonable and so recognized in their agreements and grants in respect thereto. Under the facts and circumstances of the case the rights in controversy between the parties are governed by the principles declared in the case of Dyer v. Walker, 99 Wis. 404, 75 N. W. 79, and the cases in this court there referred to. As stated in the syllabus of the case it was there held: "The owner of a right of way across the land of another, whether it was acquired by grant or by prescription, is entitled only to a reasonable and usual enjoyment thereof, in view of all the circumstances of the case and of the use then and theretofore made of the premises affected by it, and the owner of the soil is entitled to all the rights and benefits of ownership consistent with the easement." The determination in the judgment that Wehr "is entitled to have such passageway opened and made practicable" involves an inquiry into the use of the alley as it had Gimbel v. Wehr, 165 Wis. 1. theretofore existed in relation to the structures abutting thereon and the natural slope of the ground from West Water street to the river. The court found "that the level of the alley on Plankinton's forty-one feet at the time of the Plankinton-Wehr agreement in 1887 was, and ever since has been, the same substantially as it is now." The weight of the evidence preponderates in favor of this conclusion and hence the finding must stand. This fact establishes the right of the successors of Plankinton to use the space over the alley except the eight feet in the clear from the surface of this grade, and hence the original grade over this property cannot be varied. Any variation of this grade would violate the right confirmed in the Plankinton-Wehr agreement. Under this condition the slope, from the west line of the Plankinton property to West Water street to make the passageway "practicable" as directed in the judgment, had to be ascertained in the light of the adjudication in the judgment that "Wehr is entitled to have such passageway opened and made practicable." An inspection of the location and length of the alley between the street and the Plankinton property, in the light of the grade and the uses to which the alley was and is to be devoted, shows clearly that the grade established in the court's order meets these terms and conditions of the judgment. We are of the opinion that the order of the court correctly interprets the judgment, that the width of the alley established thereby is not unlawfully encroached upon by the structures on the abutting property, and that the grade of the alley as fixed in the order meets the calls of the judgment directing it to be "opened and made practicable." The direction obligating "the Gimbels" to maintain such gates, if any, in the east and west ends of their property to close the alley, which must not interfere with the use of the alley by others, is not seriously contested and will no doubt be properly complied with. By the Court. The orders appealed from are affirmed on Lommen v. Danaher, 165 Wis. 15. both appeals, and the cause remanded for further proceedings according to law. No costs are allowed to either party. The appellant Henry Wehr to pay the clerk's fees in this court. ESCHWEILER, J., took no part. LOMMEN, Appellant, vs. DANAHER, Respondent. Vendor and purchaser of land: Breach of contract by vendor: Measure of damages: Exchange of properties: Stated values, when not binding. 1. Where the vendor fails to perform an executory land contract, having agreed to do what he had no right to do, taking his chances upon being able to acquire such right, he is guilty of a species of bad faith and is liable to make good to the opposite party the damages caused to him by the loss of his bargain. 2. Defendant contracted to sell to plaintiff certain lands to which he did not have full title, for a consideration of $66,500 to be paid partly in money and partly by a stock of merchandise and store fixtures and certain real estate subject to incumbrances. The contract provided that "the value of the equities in the real estate and personal property as reckoned in this transaction is $44,500, which leaves a balance of $22,000 due to" defendant; and a date was fixed when "the exchange of properties" was to be made. Defendant was unable to obtain the title necessary to carry out his agreement. Held, that as damages for such breach plaintiff was entitled to recover the full value of his bargain. 3. The measure of the damages in such case is the difference between the fair market value, at the time of the breach, of plaintiff's equities in the property he was to transfer to defendant, and the like value at such time of the lands defendant was to convey, less the $22,000 which was to be paid in money, and interest upon said difference from the time of the breach. 4. The values stated in the contract, not having been specified or intended as fixing the actual values of the respective properties, but as a mere trading basis, were not binding on the parties in respect to damages for the breach of the contract. Lommen v. Danaher, 165 Wis. 15. APPEAL from a judgment of the circuit court for La Crosse county: E. C. HIGBEE, Circuit Judge. Reversed. Action for damages for breach of contract. Plaintiff made a land contract with defendant whereby the latter promised to sell the former a number of tracts of Montana land "for the consideration of $66,500," plaintiff to pay therefor by a stock of merchandise and store fixtures, located in a store building in Caledonia, Minnesota, the merchandise being inventoried at $5,000 and fixtures at $2,500, also some other personal property and some equities in real estate, such real estate to be taken subject to mortgage indebtedness of $13,500, and the balance as thus indicated: "The value of the equities in the real estate and personal property, as reckoned in this transaction, is forty-four thousand five hundred dollars ($44,500) which leaves a balance of $22,000 due to T. F. Danaher on the lands in Yellowstone county, Montana, above described, which amount of $22,000 will be paid in ten annual equal payments of two thousand dollars ($2,000) each, said deferred payments to bear interest at the rate of six per cent. per annum payable annually." Defendant agreed as to his title and right to convey the Montana lands as follows: "It is understood and agreed that the title to the lands in Yellowstone county, Montana, is Northern Pacific contracts; that a letter from the Northern Pacific Railway Company will be furnished as evidence that T. F. Danaher has good right to sell the same. Release of said lands in Yellowstone county, Montana, to be made on units of one section, the price of release to depend upon the grade of land, to be not less than one dollar and a half ($1.50) and not more than three and one half ($3.50) per acre." The contract contained other provisions, not material to be stated here, and a stipulation that "the exchange of properties" should be made May 27, 1913. Plaintiff was ready in due time to perform on his part and Lommen v. Danaher, 165 Wis. 15. duly tendered performance. He put defendant in possession of the merchandise and store fixtures. Defendant failed to produce such a letter from the railway company as agreed upon. His contracts with the company, six in number, covered other than the particular land and he had no right to assign them or sell any of the land without consent of the company. He could not get a deed of any of the land in any one contract without paying for all land covered thereby. The attitude of the company was such that he could not carry out his agreement with plaintiff. The latter would not accept anything other than full performance and defendant therefore declared the deal off and surrendered back possession of the stock of merchandise and store fixtures which had been retained by him for about ten days. Plaintiff claimed, as general damages, for the breach of contract, compensation for the loss of his bargain to be computed by deducting from the market value of the Montana lands at the time of the breach the aggregate of such value at such time of the property he agreed to transfer to defendant and the $22,000, less the incumbrances on the property of $13,500, with interest on the balance from such time. There was a claim for special damages in respect to the store stock and business and to support that plaintiff was asked, when testifying in his own behalf, how the closing down of the store affected the value of the stock. Upon objection being made thereto as not bearing on the proper measure of damages, it was sustained after plaintiff stated that he did not resume the store business for one year because when he sold out he could not buy goods and did not have any money to do so. There was evidence respecting the general damages claimed by plaintiff to the effect that the market value of the Montana land at the time of the breach was $55,000 and of plaintiff's property $31,750. The jury found accordingly. VOL. 165-2 |