85 Wis. 142 | Wis. | 1893
This action is not agiinst the city, but is only against its contractors engaged in the work of repaving the street, as mentioned in the 'foregoing statement. The contract of the defendants with the city is silent as to whether the defendants, in doing the work, were authorized to obstruct or interfere with the running of cars by the plaintiff on the street in question. Of course it implies such occupancy of the street during the time as might be reasonably necessary to perform the work according to their contract. There is no claim or'pretense that the plaintiff’s tracks were not lawfully and rightfully in the street in question at the time of making such contract, nor that the plaintiff was not then lawfully and rightfully run
The question is somewhat similar to the interference with travel upon streets and sidewalks by abutting owners, which has received some consideration from this court. Jochem v. Robinson, 66 Wis. 642; Raymond v. Keseberg, 84 Wis. 302. In Gas Light & Coke Co. v. Vestry of St. Mary Abbott's, 16 Q. B. Div. 5, the municipality was restrained from using steam rollers in repairing the street in a way to injure the plaintiff’s gas pipes in the earth beneath. LiND-ley, L. J., speaking for the court, said: “The authorities, and particularly Metropolitan Asylum Dist. v. Mill, 6 App. Cas. 193, show that an action lies for an injury to property, unless such injury is expressly authorized by statute, or is, physically spealcmg, the necessary consequence of what is so authorized." In Hamilton v. V., S. & P. Railroad, 119 U. S. 280, the right of the^ railroad company to construct a bridge over a navigable stream in a way to interfere with the navigation thereon was involved; and Mr. Justice Field, giving the opinion of the court, said: “ Two conditions, however, must be deemed to be embraced within this implied power,— one, that the bridges should be so constructed as to insure safety to the crossing of the tra.ins, and be so kept at all times; and the other, that they should not interfere unnecessarily with the navigation of the streams'' That language has. been quoted approvingly by this court. J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 86.
It follows from what has been said that the rights of neither of the parties to this action were absolute, as against the other, in respect to the street in question, but the rights
By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause is remanded for further proceedings according to law.