72 Wis. 416 | Wis. | 1888
This is an action to recover damages against the defendants for entering upon the premises of the plaintiff and removing her fence and trampling down her shrubbery. The defendants admit the removal of the plaintiff’s fence as charged, and justify it under the order of the common council of the city oí Plymouth, in which the premises are situated, requiring the summary removal of said fence as an encroachment upon a street of said city, after due notice to the plaintiff to remove the same. The fence was on a line nearly parallel to the street, and about thirteen feet from the line thereof on one side. The defendants claim that such summary removal was authorized by the power given to the common council “ to abate nuisances,” and “to prevent the obstruction of streets,” by the charter of said city (sec. 25, ch. 193, Laws of 1877). The jury found a special verdict that the fence was within said street, but that it “ did not incommode the public use of said street as a highway for teams and foot-passengers,” and that said fence “ had been maintained continuously upon the same line seventeen years.” The plaintiff recovered $85 damages.
This fence was obviously neither a public nuisance' nor an obstruction to the street. The finding that it did not incommode the public use of said street as a highway is restricted “ to teams and foot-passengers,” and is for that reason informal. But it is substantially a finding that it did not incommode the public use of the street for any purpose, for if it did not incommode teams and foot-passengers it could not incommode anybody traveling thereon. If the
By the Court.— The judgment of the circuit court is affirmed.