Pauer v. Albrecht

• Decision Date: 09 October 1888
• Citation: 72 Wis. 416,39 N.W. 771
• Parties: PAUER v. ALBRECHT ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 416

39 N.W. 771

PAUER

v.ALBRECHT ET AL.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Sheboygan county; N. S. GILSON, Judge.

Action by Dorothea W. Pauer against Charles Albrecht and others, being the city of Plymouth and its officers and employes, for removing a fence. Judgment for plaintiff was entered upon a special verdict, and defendants appeal. Rev. St. Wis. § 1326, provides that “whoever shall obstruct any highway, * * * shall forfeit for every such offense a sum not exceeding twenty-five dollars; and the overseer of the proper district shall cause such obstruction immediately to be removed.”M. C. Mead and Seaman & Williams, for appellants.

Turner & Timlin, ( M. D. L. Fuller, of counsel,) for respondent.

ORTON, J.

This is an action to recover damages against the defendants for entering upon the premises of the plaintiff, and removing her fence, and trampling down her shrubbery. The defendants admitted the removal of the plaintiff's fence as charged, and justify it under the order of the common council of the city of Plymouth, in which the premises are situated, requiring the summary removal of said fence as an encroachment upon a street of said city, after due notice to the plaintiff to remove the same. The fence was on a line nearly parallel to the street, and about 13 feet from the line thereof on one side. The defendants claim that such summary removal was authorized by the power given to the common council “to abate nuisances,” and “to prevent the obstruction of streets,” by the charter of said city, (section 25, c. 193, Laws 1877.) The jury found a special verdict that the fence was within said street, but that it “did not incommode the public use of said street as a highway for teams and foot-passengers,” and that said fence “had been maintained continuously upon the same line seventeen years.” The plaintiff recovered $85 damages.

This fence was obviously neither a public nuisance nor an obstruction to the street. The finding that it did not incommode the public use of said street as a highway is restricted “to teams and foot-passengers,” and is for that reason informal. But it is substantially a finding that it did not incommode the public use of the street for any purpose, for, if it did not incommode teams and foot-passengers, it could not incommode anybody traveling thereon. If the fence is not in the way of those traveling by teams, it could not be in the way of those traveling in...