30 Wis. 492 | Wis. | 1872
Counsel for the defendants very frankly concedes that the defendants, as president and trustees of the village, bad no authority to build the bridge. This was so decided on the argument of the same learned counsel in support of the proposition in the case of The Town of Menasha v. The Steam tug Portage, 26 Wis., 534, and there can be no doubt, we think, about the correctness of that decision. This concession being made, it seems to follow, though we assume all other points in favor of the defendants, respecting the validity or legal existence of the highway, that still this action should be maintained, provided only that the plaintiffs have shown that they have or will suffer special or peculiar damage by reason of the erection and maintenance of the bridge. It appears that the plaintiffs are the owners or parties beneficially interested under a lease in perpetuity of the locus in quo, or place where the bridge was being built, and that the same is in their actual possession, use and enjoyment, subject only to the public easement or right of passage over it as a highway. Tbe plaintiffs occupy the premises with a flume or race crossing the alleged highway, and used by the plaintiffs for the purpose of running logs to their saw, lath and shingle mill, situated below the dam. Tbe legality of such use and occupation or the right of the plaintiffs,
Now, looting upon the acts of the defendant as wholly unauthorized by law, or as if they were three merely private persons clothed with no public or official authority whatever, who had come upon the premises and undertaken the building of the bridge or to drive piles in the bed of the stream, thus permanently interfering with and depriving the plaintiffs of the lawful use and enjoyment of their own property, and creating'what in strict legal sense would be deemed and denominated a public nuisance in the highway, because unlawfully placed there, it would seem very clear that the plaintiffs, proving any peculiar injury or inconvenience of a permanent nature or likely to be, would be entitled to maintain their action and to have the relief demanded in their complaint. This court has certainly no disposition, without necessity, and unless the due administration of the law imperatively demands it, to interfere with the acts and proceedings of the public authorities of the town and village of Menasha in matters of -this nature, for we believe that the rights and interests of all, will, in general, be best subserved and ¡promoted by leaving the local authorities free to act and
But as we have said, looking upon the action of the defendants now as wholly without authority, as we are compelled to, we do not see but the plaintiffs were entitled to the relief which they demanded. We have not scrutinized the testimony very closely, but have examined it far enough to satisfy ourselves that considerable evidence of special and peculiar damage was given. But more than this, the plaintiff, Duchman, was called as a witness, and his testimony rejected. He was excluded on objection of the defendants, and, as their counsel now concedes, erroneously. It was clearly error, since no notice of his intended examination was necessary. Delamatyr v. Railroad Co., 24 Wis., 578; Warner v. The Supervisors of Outagamie County, 26 Wis., 310. It must be presumed that the witness was called, and would have given testimony on this very subject of special and peculiar injury. It was in connection with that branch of the plaintiffs’ case that he was called, and it cannot be said, therefore, that the plaintiffs suffered no wrong by his having been improperly excluded. Eor this error alone, the judgment would, under the circumstances, have to be reversed, and it is accordingly so ordered.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.