Jennings v. Johonnott

BarNes, J. The provisions of secs. 1326 and 1330, Stats. (1898), are applicable to cities. Sec. 1347, Stats. (1898) ; State v. Leaver, 62 Wis. 387, 22 N. W. 576; Pauer v. Albrecht, 72 Wis. 416, 39 N. W. 771; State v. Pomeroy, 73 Wis. 664, 41 N. W. 726; Hubbell v. Goodrich, 37 Wis. 84. Tbe principal question in tbe case is whether tbe fence constituted an obstruction within tbe meaning of sec. 1326, Stats. [663] (1898), or an encroachment within the meaning of sec. 1330. If the former, the city officials might summarily remove it; if the latter, they might not. Any object unlawfully placed within the limits of a highway is an obstruction if it impedes or seriously inconveniences public travel or renders it dangerous, and it is not at all necessary that such object should stop travel in order to be an obstruction. The cases so holding are numerous. Neff v. Paddock, 26 Wis. 546, 552; Hubbell v. Goodrich, 37 Wis. 84, 86; State v. Leaver, 62 Wis. 387, 392, 22 N. W. 576; State v. Pomeroy, 73 Wis. 664, 665, 41 N. W. 726; Chase v. Oshkosh, 81 Wis. 313, 319, 51 N. W. 560; Bartlett v. Beardmore, 77 Wis. 356, 365, 46 N. W. 494; Konkel v. Pella, 122 Wis. 143, 146, 99 N. W. 453; Jones v. Tobin, 135 Wis. 286, 115 N. W. 807. Undoubtedly up to the time the De Haven walk was built the fence was merely an encroachment. The building of this walk on the correct line materially changed the situation, and what was before an encroachment might then become an obstruction. Eour witnesses testified that the fence constituted an obstruction dangerous to public travel. The reasons advanced for this conclusion were: (1) pedestrians walking along the east side of the De Haven walk might thoughtlessly run into the post; (2) school children running along carelessly might .bring their faces and eyes in contact with the cap on the post; (3) pedestrians walking northward on the De Haven walk when it was dark might run against the post and suffer injury; (4) three persons walking abreast could not pass the jog in the walk without one of them dropping back. We think this evidence was sufficient to warrant the jury in finding that the fence was dangerous to public travel and therefore an obstruction. Neale v. State, 138 Wis. 484, 487, 120 N. W. 345. This issue was submitted to the jury by the following question: “Did the fence in question incommode, hinder, or endanger public travel along the east side of said street?” To which the jury answered “Yes.” The question [664] submits three disjunctive propositions and might he answered in the affirmative without unanimous concurrence on any one of them by the jurors. No error is assigned on the form of' the verdict and there was no request that the different propositions be made the subject of separate questions, and if there is-any infirmity about the question we must presume a finding-by the trial court in support of the judgment on the material issues not passed upon by the jury. It is argued that the court erred in admitting testimony with respect to building the sidewalk adjacent to plaintiff’s-property, and that no evidence should have been received as-to the condition of plaintiff’s sidewalk. The condition of' plaintiff’s walk was testified to by plaintiff before resting her-case and in answer to questions propounded by her own counsel'. Evidence in reference to the building of the new walk was also offered by plaintiff’s counsel as part of their case in chief, the portion of the examination of J ohonnoti as an adverse witness, taken before trial and which was read, dealing-largely with that subject. The evidence bearing on this assignment of error, given by the witnesses Johonnoti and Bueggar, and quoted in appellant’s brief, was brought out on cross-examination by appellant’s counsel, so they cannot predicate-error on it. There was no ruling on such evidence, and presumably the court would have sustained an objection thereto-had counsel objected to their own questions. Other evidence-said to have been given by Johonnott on page 132 of the record was in fact given by the witness Both on pages 133 and. 134 of the record, and was elicited by plaintiff’s counsel on cross-examination. The only part of the evidence quoted in the brief which was brought out by defendants was a statement of the witness Mackey that the new walk could not be-built where it was without removing the fence. This was a self-evident proposition. No error was committed in receiving evidence of the character complained of, and in any event the appellant is in no position to complain. The question of' punitory damages was submitted to the jury, and it was en [665] tirely proper for tbe defendants to assert tbat they acted in good faith in removing the fence because it was necessary to build a new sidewalk and they desired to build it on the line of the walk already constructed. Eurthermore, appellant claims that she is entitled to judgment because the city officials committed a trespass in laying the walk. In support of the contention last suggested it is said that the city officials ignored the provisions of law, in that they failed to declare the walk defective, passed no order requiring the old walk to be removed, and never served a written order or resolution on plaintiff, as required by sec. 925 — 204, Stats., as mended (Laws of 1907, ch. 674). Waiving the question that no such ground of recovery is relied on in the complaint, we do not see how the city officers can be held guilty of a trespass for laying a sidewalk in a street. These defects, if they existed, might enable plaintiff to resist payment of the expense of the walk, but did not make officers who confined their operations to the street trespassers on plaintiff’s lots. By the Court. — Judgment affirmed.