Jennings v. Johonnott

• Decision Date: 12 March 1912
• Citation: 149 Wis. 660,135 N.W. 170
• Parties: JENNINGS v. JOHONNOTT ET AL.
• Court: Wisconsin Supreme Court

149 Wis. 660

135 N.W. 170

JENNINGS

v.JOHONNOTT ET AL.

Supreme Court of Wisconsin.

March 12, 1912.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Janet Jennings against H. W. Johonnott and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The plaintiff is the owner of lots 3, 4, and 5, and the north five feet of lot 6, block 29, Carman's addition to the city of Monroe. This property is located on the east side of Adams street and had been inclosed by a fence for many years. Plaintiff also owned at one time other property lying immediately to the south of that described, and a board walk had been maintained adjacent to said property and on the east side of Adams street for about 35 years. One De Haven purchased from the plaintiff a parcel of ground immediately south of that above described as being now owned by her, and built a residence thereon during the year 1909. He desired to put in a cement sidewalk on Adams street adjacent to his property, and he employed a surveyor to locate the street line. The survey showed that the fence which plaintiff maintained stood in the neighborhood of a foot in the street at the southwest corner of her property. De Haven built a cement walk in accordance with the survey, which, when finished, left a jog in the walk as above indicated. There was a boxed fence post which was eight inches square and which stood wholly in the street at the point indicated, and there was a cap on the post which extended two inches further into the street. The fence extended into the street about three inches at the northwest corner of the plaintiff's property and was built on a comparatively straight line, so that it extended not less than three nor more than twelve inches into the street at any point. In the year 1910, when De Haven built his fence, the city authorities served notice on plaintiff requesting her to build a walk of the same material in front of her property, and some of them testified that she agreed to do so. However, she neglected to build the walk, and during the month of October, 1910, the city authorities tore down the fence and constructed a walk. Plaintiff brings this action against them to recover damages for the alleged trespass committed. The jury found (1) that the fence was within the east line of Adams street; (2) that it was so far within the east line of the sidewalk ordered to be built in May, 1910, as to necessitate its removal in order that the walk might be built as ordered; (3) that in May, 1910, plaintiff had knowledge of the fact that the fence was so located with reference to the sidewalk; (4) that plaintiff had knowledge of the fact that the fence was so located with reference to the sidewalk at the time she promised to build the sidewalk in September, 1910; (5) that the fence in question incommoded, hindered, or endangered public travel along the east side of the street; (6) that defendants used reasonable care in removing the fence; (7) that the cost of replacing the fence in as good condition as it was prior to its removal would be $12.50; (8) that defendants were not actuated by willful or malicious motives in removing the fence; (9) that plaintiff was not entitled to punitory damages. From a judgment rendered for defendants on this verdict, plaintiff appeals.F. W. Hall and J. L. Sherron, for appellant.

A. S. Douglas (Jeffris, Mouat, Oestreich & Avery, of counsel), for respondents.

BARNES, J. (after stating the facts as above).

The provisions of sections 1326 and 1330, St. 1898, are applicable to cities. Section 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.

[1][2][3] The principal question in the case is whether the fence constituted an “obstruction” within the meaning of section 1326, Stats., or an “encroachment” within the meaning of section 1330, Stats. 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, 15 L. R. A. 553, 29 Am. St. Rep. 898;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. Four witnesses testified that the fence constituted an obstruction dangerous to public travel. The reasons advanced...