Chase v. City of Oshkosh

• Decision Date: 23 February 1892
• Citation: 81 Wis. 313,51 N.W. 560
• Parties: CHASE ET AL. v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

81 Wis. 313

51 N.W. 560

CHASE ET AL.

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

Feb. 23, 1892.

Appeal from circuit court, Winnebago county; G. W. BURNELL, Judge.

Action by Lucy Chase and Mary Chase against the city of Oshkosh. Judgment for plaintiffs. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought by the plaintiffs against the city for the alleged wrongful cutting down and removing of five ornamental shade trees which were standing and growing upon their premises, on the west side of Oregon street, in said city, inside of the street line of the sidewalk, and next to the carriage-way. It is charged that the trees did not incumber or obstruct the street or sidewalk, or hinder or delay travel thereon; that the common council of the city, at a regular meeting, adopted a resolution directing and empowering the aldermen of the ward in which said premises were situated to cut down and remove the trees, and that they, acting upon said directions, unlawfully cut down and destroyed them; and it was claimed that no previous notice had been given to the plaintiffs to remove them; that the resolution of the common council was null and void, and said trees were cut down and carried away without due process of law. The answer was a general denial. The proof showed that the trees in question had been growing in front of the plaintiff's premises for about 16 years, were 25 to 40 feet high, and about 12 inches in diameter, and stood within the side walk from 8 to 15 inches, as some witnesses said, and, as others stated, just inside of the walk. It was shown that the plaintiffs had been notified by a policeman to cut these trees down, but this was before the passage of the resolution authorizing their removal. Considerable testimony was given to show that the trees were not an obstruction to travel on the street or walk, and caused no inconvenience; and, on the other hand, testimony was given to show that travelers could not walk on the entire width of the sidewalk without running into or against the trees. The aldermen of the ward all testified that they considered that the interests of the city required their removal, that frequent complaints had been made to them about the trees for two years past, and that they caused the trees to be cut down and removed under the resolution in question. The complaint showed upon its face under and by what authority the trees had been so cut down and removed, and at the trial the defendant objected to the introduction of any evidence under it, for the reason that it did not state a cause of action; but this objection was overruled. Various objections were taken to testimony offered, on either hand, to show that the trees were or were not an obstruction to travel on the sidewalk or street. The court was asked by the defendant to instruct the jury that “it is the duty of the city to keep its streets and sidewalks at all times open and free for the use of persons traveling over and along the same, over the entire width of the street, and failure so to keep the streets and sidewalks free from obstruction would render the city liable for injury occasioned thereby;” also, that it was “made the duty of the aldermen, and they had the power and right, without notice, to remove any obstruction from the streets and sidewalks;” also, that there was nothing in the charter requiring previous notice, either verbal or written, to be given, in case of the removal of an obstruction from the streets or sidewalks. These several instructions were refused. The court submitted to the jury the questions: First.“Did said trees incommode or hinder the public use and enjoyment of said street or sidewalk?” Second.“Did said trees injure said street or sidewalk, or interfere with travel?” And the court charged the jury that, in answering the first question, they “must consider only the ordinary and reasonable use and enjoyment of the street by the public, and must exclude any incidental inconvenience necessarily accompanying the keeping of shade trees; and, if the jury find that the shade trees only put the public to those inconveniences necessarily accompanying shade trees, and did not deprive it of any substantial or necessary use or enjoyment of the street or sidewalk, then the jury must answer the first question in the negative.” The jury answered both said questions in the negative, and assessed the plaintiff's damages at $1,100. The defendant moved for judgment on the verdict, which was denied; and moved also to set it aside and for a new trial, on the ground that it was contrary to the evidence and contrary to law, and for error of the court in the charge to the jury, and for refusal to sustain the objection to any evidence under the complaint. This motion was denied. The court ordered the plaintiffs to remit $300 of the damages, and gave judgment in their favor for $800 damages and costs, and the defendant appealed.H. I. Weed, for appellant.

Finch & Barber and F. Beglinger, for respondents.

PINNEY, J., ( after stating the facts.)

In the case of Kimball v. City of Kenosha, 4 Wis. 321, it is decided that the grantee of a lot bounded by a street or streets in a village platted and laid out in conformity with the statute takes to the center of the street on which the lot abuts, subject to the public easement; and this proposition has been repeatedly affirmed in numerous subsequent cases, some of which are cited in Andrews v. Youmans, 78 Wis. 58, 47 N. W. Rep. 304. The right of the public to use the street for purposes of travel extends to the portion set apart or used for sidewalks, as well as to the way for carriages, wagons, etc., and, in short, to the entire width of the street upon which the land of the lot-owner abuts. As against the lot-owner, the city, as trustee of the public use, has an undoubted right, whenever its authorities see fit, to open and fit for use and travel the street over which the public easement extends, to its entire width; and whether it will so open and improve it, or whether it should be so...