18 Wis. 83 | Wis. | 1864
By the Court,
The plaintiff in this action seeks to hold the city of Milwaukee liable for damages done by a hog which was running at large in the streets, and entered the plaintiff’s premises and injured some clothes. The reasoning upon which the liability is attempted to be maintained, is that the city has power, under its charter, “ to restrain the running at large of cattle, swine, sheep, poultry and geese,” and also “ to abate nuisances,” and that by reason of neglecting to pass any ordinance to restrain hogs from running at large, it became liable for all damages that they might occasion to individuals while running at large. The counsel cites an indefinite number of cases to show that where a corporation is bound absolutely to perform any ministerial duty, it is liable for damages occasioned by its non-performance or negligent and unskillful performance. Most of the cases were for damages occasioned by the neglect to repair highways, in which the liability is well established.
But the same cases, and others cited by the respondent, show that where the power conferred is discretionary, to be
In all these cases, though individuals have a general interest in having the matters wisely regulated, they have no absolute right to any specific regulation, but are bound by the judgment of the common council as to what the public interest requires. Goodrich v. Chicago, 20 Ill., 445.
But the plaintiff’s counsel also contends that a hog running at large is a nuisance, and that the city, having the power to abate nuisances, was bound to abate this, and liable for its failure to do so. The actual abatement of a nuisance is certainly more a ministerial act than the passage of an ordinance. And if it should be established that it was the absolute duty of cities to abate nuisances, in the same manner that it is to keep streets in repair, the cases relied on might be applicable to show that they would be liable for a neglect of such duty But it is not necessary to examine how far such liability may exist, for the reason that it has never been established and cannot be held, that a hog or other animal running at large is necessarily a nuisance in the legal sense of that term. The counsel attempts to prove them so by applying to them the general legal definition of a nuisance, that it is anything that worketh hurt, inconvenience or damage, or “ tends to the annoyance of the king’s subjects.” But if this definition were applied indiscriminately, it would abate a great many things that have never been held to be nuisances. He refers to the old author-ties holding that swineyards in cities are nuisances. But they show that swine become nuisances by being shut up, instead of runniDg at large.
The only correct conclusion seems to be, that although such animals may occasion inconvenience and annoyance by running at large, yet they are not per se nuisances, but are subject only to such regulation as the municipal authorities may determine. Undoubtedly the annoyance from them might be
The judgment is affirmed.