Chase v. City of Oshkosh, 81 Wis. 313

Chase v. City of Oshkosh

81 Wis. 313 | Wis. | 1892

PiNNev, J.

In the case of Kimball v. Kenosha, 4 Wis. 321, it is decided that the grantee of a lot bounded by a street or streets in a village platted and laid out in conformity with the statute, takes to the center of the street on which the lot abuts, subject to the public easement; and- this proposition has been repeatedly affirmed in numerous subsequent cases, some of which are cited, in Andrews v. Youmans, 78 Wis. 58. The right of the public to use the street for purposes of travel extends to the portion set apart or used for sidewalks, as well as to the way for carriages, wagons, etc., and, in short, to the entire width of the street upon which the land of the lot-owner abuts. As against the lot-owner, the city, as trustee of the public use, has an undoubted right, whenever its authorities see fit, to open and fit .for use and travel the street over which the public easement extends, to its entire width; and whether it will so open and improve it, or whether it should be so opened or improved, is a matter of discretion, to be determined by the public authorities to whom the charge and control of the public interests in and over such easements is committed. With this discretion of the authorities courts cannot ordinarily interfere upon the complaint of a lot-owner, so long as the easement continues to exist; and no mere non-user, however long continued, will operate as an abandonment of the public right, even though, until needed for a public use, the authorities should treat the street as the property of the owner of the lot. The public authorities, representing its interests, will not be thereby *317estopped from removing obstructions therefrom and opening and fitting it for public use to its entire width. State v. Leaver, 62 Wis. 387; Reilly v. Racine, 51 Wis. 526; Childs v. Nelson, 69 Wis. 125. The public use is the dominant interest, and the public authorities are the exclusive judges when and to what extent the street shall be improved. Courts can interfere only in cases of fraud or oppression, constituting manifest abuse of discretion. Benson v. Waukesha, 74 Wis. 31-39; Wright v. Forrestal, 65 Wis. 341; Pontiac v. Carter, 32 Mich. 164; Brush v. Carbondale, 78 Ill. 74.

It necessarily follows that for the performance of this discretionary duty by the city officers in a reasonable and prudent manner no action can be maintained against the city. Alexander v. Milwaukee, 16 Wis. 264. It may well be that had the trees in question been cut down or removed by some third party, not acting under proper authority from the city, he would have been held liable to the plaintiffs in an action for trespass; and it was so held in Andrews v. Youmans, 78 Wis. 58. But this does not tend to show that this action can be maintained for cutting and removing them under the authority of the common council given by resolution to the aldermen of the ward, standing, as they did, within the sidewalk, even without notice to the lot-owner. There was testimony that plaintiffs had been notified to remove the trees, and they had failed to do so. Complaint had been made for two years previously, to the aldermen of that ward, that the trees Avere obstructions to the sideAA^alk; and it is not contended but that they Avere cut doAAm in good faith and in pursuance of the authority Avhich the city possesses over its streets and sidewalks. It was admitted at the trial that the trees were cut down by parties acting in good faith under the authority of the city and Avithout malice.

It was the duty of the city to keep its streets and side*318walks free and clear of obstructions for the use of persons traveling over and along the same; and there can be no doubt but that the city would have been liable in damages to any person traveling along and over the walk in question, in the night-time, who, without fault on his part, had been injured by running against these trees situated within the limits of the walk. There can be no doubt but that the common council had the right, therefore, to treat them as obstructions to the public travel, and a nuisance, and to abate the nuisance in the manner they did, to protect the public in the lawful use of the sidewalk, and the city from liability for injuries which might be sustained by persons passing along and over it and who might be injured h>y such obstructions. Whether the trees were obstructions to travel and ought to be removed in order to make the sidewalk reasonably safe for travel, was, we think, a matter within the quasi legislative discretion conferred on the common council by the city charter. The charter of the city gives the common council, under various subdivisions of sec. 3, subch. VI, ch. 183, Laws of 1883, power, by ordinance, resolution, or by-law, when it deems it expedient, “ to prevent the incumbering of the streets and sidewalks,” and to “control and regulate the streets, . . . and to remove and abate any obstructions and encroachments therein,” and to “ protect the same from any encroachment or injury,” and “ to prevent, prohibit, and cause the removal of all obstructions in and upon all streets in said city; ” and the provisions of ch. 52, R. S., on the subject of encroachments and obstructions on streets and highways, are not applicable, because special provisions are made in the charter of the city of Oshlcosh, inconsistent therewith (R. S. sec. 1341); and by the charter of the city it is provided that “ no general law of this state, contravening the provisions of the charter, shall be considered as repealing, annulling, or modifying the same, unless such purpose be *319expressly set forth in such law ás an amendment .of this charter ” (Laws of 1883, ch. 183, subch. XIV, sec. 25); and this provision was in force when the present revision, of the statutes was adopted (Laws of 18Y7, ch. 123, subch. XIII, sec. 25). Similar provisions have existed in the various charters of cities in this state from an early day.

Inasmuch as the discretion and judgment of the common council in respect to these matters cannot be revised by the court or jury, there being no evidence tending to show an abuse of it, the court ought not to have submitted it to the jury to find whether: “ (1) Did said trees incommode or hinder the public use and enjoyment of said street or sidewalk? (2) Did said trees injure said street or sidewalk, or interfere with travel? ” It was not seriously contended on the part of the plaintiffs but that the city authorities might authorize the removal of the trees; but it was claimed that they constituted an encroachment, and were not obstructions to the walk or street, and that they could not be removed without a hearing on notice. An encroachment is a gradual entering on and taking possession by one of what is not his.own; the unlawful gaining upon the rights or possessions of another. The fencing in or inclosing of a portion of a street or highway by a fence or wall, or the occupancy of it, would be an encroachment; and, as there may be uncertainty as to the exact line of the street or highway, it may be necessary, in order to remove it, that notice be given, so that the question of encroachment may be first passed upon by a jury. An obstruction is a blocking up; filling with obstacles or impediments; an impeding, embarrassing, or opposing the passage along and over the street,— and, to constitute it such, it need not be such as to stop travel. The provisions in the city charter on the subject of encroachments and obstructions of streets and sidewalks give very extensive and comprehensive powers to the common council, of a quasi legislative character, *320but without any particular directions as to the manner of their exercise; and these powers are peculiarly adapted to the needs of a growing and populous village or city. They are not only very comprehensive and far-reaching, but they clearly extend to the cutting down and removal of the .trees in the manner adopted in the present instance, as they were manifestly obstructions to the sidewalk, although room was left on the walk for foot travel to pass. It was not necessary, in order that they should constitute an obstruction, so as to authorize their removal, that they should interrupt or stop travel. The case of State v. Leaver, 62 Wis. 392, is decisive on this subject. It surely cannot be maintained that the plaintiffs have the right to plant and maintain other trees in their place within the sidewalk, or that other lot-owners can plant in like manner and maintain trees thus situated.

As already stated,, the plaintiffs had a right of property in the trees, in the sense that they might have cut or removed them, or maintained an action against any one who did so, not acting under authority of the common council; but it does not follow that they had the right to keep and maintain them standing within the sidewalk, in defiance of the resolution of the common council insisting, in the interests of the public, on their removal. The case of Pauer v. Albrecht, 72 Wis. 416, is clearly not in point; for it was a case of an encroachment; and the charter did not contain provisions authorizing the removal of encroachments, and the proceedings had to be, if at all, under the general statute. A permanent obstruction, such as trees standing within a sidewalk or traveled street, or stone columns which may interfere with public travel, constitutes per se a public nuisance, and may be summarily removed by direction of the common council.

The circuit court, upon the entire case, ought to have directed a verdict for the defendant. For these reasons, and *321far error in refusing the instructions asked by the defendant, the judgment of the circuit court must be reversed.

See note to this case in 15 L. R. A. 553.— Rep.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.