Upon the hearing of this appeal the learned counsel for the appellant contends (1) that the complaint sets up a good cause of action against the citjr under the provisions of sec. 1339, R. S. 1878, which provides that “if any damage shall happen to any person, his teаm, carriage, or other property, by reason of the insufficiency or want of repairs of any bridge, sluiceway, or road in any town, city, or villаge, the person sustaining such damage shall have the right to sue for and recover the same against any such town, city, or. village;” and (2) that the cоmplaint states facts sufficient to constitute a cause of action against the city for knowingly permitting the erection and maintenancе of a public nuisance in said city.
It seems to us very clear that there are no allegations in the complaint which show any insufficiency or wаnt of repair of the street or sidewalk so as to bring the case within the provisions of the statute above quoted. The shooting gallery was neithеr in the street, nor within the boundaries of the sidewalk, but outside of the same, presumably upon private property, and no more obstructed the sidеwalk than any other building erected adjoining such walk. A highway may be insufficient, within the meaning of the statute, on account of a precipice or excavation immediately adjoining the traveled part thereof, unless a barrier be placed along such precipice or excavation. It may be insufficient
Although it is apparent from the form and general allegations of the complaint that the learned сounsel who drew the same intended to state a case against the city under thé provisions of the statute above quoted, he now insists that if he has fаiled to make out a case under that statute there is sufficient in the complaint to show that the city knowingly permitted a public nuisance to exist in the city, adjacent to a public street, which endangered the lives of persons
Whatever may have been decided by other сourts upon this point, this court has held in the cases of Little v. Madison and Schultz v. Milwaukee, supra, that' an action will not lie against a municipal corporation for not suppressing а public nuisance within the municipality, when such nuisance is not created or maintained by the express authority of the municipality, and when such publiс nuisance is not the result of some act done, or neglected to be done, in the performance of a duty imposed upon the municiрality by law, such as repair of streets, constructing sewers, water or other public works. This doctrine is well sustained by authority. See Norristown v. Fitzpatrick, 94 Pa. St. 124; Elliot v. Philadelphia, 75 Pa. St. 347; 2 Dillon, Mun. Corp. (3d ed.), §§ 975, 976; Buttrick v. Lowell,
This court also held in the cases above cited that the mere fact that the proper city authorities licеnsed the carry
"We cannot hold, as a question of law, that a shooting gallery erected in a proper place and conducted in a proper manner is a public nuisance. On the contrary, we are of the opinion that suсh a gallery is not a public nuisance at common law, and, in the absence of any statute declaring it to be such, it must be considered a lawful businеss when carried on in a proper manner and place. The mere granting of a license by the municipal authorities to carry on a shooting gallery within the corporate limits of the city was not, therefore, a license to keep and maintain a public nuisance within said limits, and thе city is not chargeable for injuries resulting from an -abuse of his license by the licensee. When the licensee creates a public nuisance by an abuse of the license granted to him by the city, the city is no .more liable for the damaging results of áuoh nuisance than it would be for the damage сaused by any other public nuisance by a citizen, within the municipality, by carrying on his business in such city without a license from the city.
By the Court.— The judgment of the circuit court is affirmed.