Hay v. Weber

Cassoday, J. Under the settled law of this state, the defendant’s ownership of the fee to lot 4, mentioned in the foregoing statement, extended to the center of Main street. Such title, however, was subject and subordinate to the right of the public to use the street for the ordinary purposes of travel. In other words, the primary object of a public street or sidewalk in a city is for public travel. Jochem v. Robinson, 66 Wis. 641. It is not to be inferred from this, however, that even the public have the right to require the municipality or the abutting lot-owner to keep the entire space, within the boundaries of a street, open, free, and safe for travel, but only such portions as have been used by the public for travel. Fitzgerald v. Berlin, 64 Wis. 207. When the defect or obstruction complained of is wholly outside of such portion so used by the public for travel, and not connected therewith so as to endanger the safety of such travel, there can be no recovery, notwithstanding the same was within the boundary lines of such street. Ibid.; Elliott, Roads & S. 455. It is undoubtedly true, as suggested by the learned authors cited, that cities have a wide discretion in determining how much of a highway shall be devoted to the use of horses and vehicles, and how much shall be given to the sidewalks, trees, gutters, and the like. Ibid. 456. Such use is ordinarily regulated by municipal ordinances, as it is conceded was done in Oshkosh. When such use is so regulated, and the abutting owner uses the same in accordance with such regulations, he is not, in the absence of negligence, liable for accidents resulting from such use; and in such case the burden of proof is not upon him to show the necessity of such use. Denby v. Willer, 59 Wis. 240; S. C. 6 Am. & Eng. Corp. Cas. 226. This court has held that an abutting lot-owner may construct vaults or other areas under the sidewalk, with openings in the walk, if this is done in such a manner as not to interfere with or endanger public travel. Pap591 worth v. Milwaukee, 64 Wis. 389. Tbe same rule has been applied by other courts to a structure over a right of way. Sutton v. Groll, 42 N. J. Eq. 213; Atkins v. Bordman, 2 Met. 457; Gerrish v. Shattuck, 132 Mass. 235. In the case at bar it is ribt the public, nor a traveler, nor the municipality, that is complaining of the structure in question, but an adjoining lot-owner abutting upon the same street. True, the complaint alleges that such bay-windows would obstruct travel upon the sidewalk, but it appears from the affidavits, and is very obvious, that they would not unreasonably obstruct such travel. Besides, that question is not here involved. The plaintiff makes no complaint of any injury sustained as a traveler. This being so, he is in no position to vicariously redress such public wrongs by private action. We have recently held that, to maintain a private action for a public nuisance, the injury sustained by the plaintiff must be such as not merely differs in degree, but in kind, from that which is sustained by the public. Zettel v. West Bend, ante, p. 316. The reasons for the rule, and the authorities in support of it, are there sufficiently stated. The bay-windows in question were only to extend out from the defendant’s building a distance of eighteen inches. They could in no way prevent access to the plaintiff’s store. They might prevent persons near the buildings on the sidewalk north of them from seeing the front of his store, or persons at his store from seeing the stores north of the bay-windows on the same side. It is claimed that such obstruction of vision interfered with and damaged the plaintiff’s business. It is difficult to perceive how such obstruction could result in such damage, but, assuming that it would, yet such damage would be too remote and speculative to constitute the basis of a private action at law or in equity. By the Court. — The order of the circuit court is reversed, and the cause is remanded with direction to dissolve the injunction, and for further proceedings according to law.