Anger v. Al. G. Barnes Amusement Co.

197 N.W. 707, 183 Wis. 272, 1924 Wisc. LEXIS 142

• Court: Wisconsin Supreme Court
• Decided: March 11, 1924
• Status: Published

Opinion

Eschweiler, J.

Defendant’s wagon lawfully on the highway had a right to an unobstructed use on and up from its surface paramount and superior to any right that could be asserted by plaintiffs to maintain the clock. 29 Corp. Jur. 545; 13 Ruling Case Law, 251.

This clock dial, projecting as it did into the public highway beyond the perpendicular over the curbing, was clearly an obstruction. Such was the holding as to fences, Collins v. State, 162 Wis. 349, 156 N. W. 133; Jennings v. Johonnott, 149 Wis. 660, 135 N. W. 170; a telephone pole, Monroe Tel. Co. v. Ludlow, 140 Wis. 510, 122 N. W. 1030; a post set three feet from the traveled track, Neale v. State, 138 Wis. 484, 488, 120 N. W. 345; a sidewalk at a known unlawful grade, Blanke v. Genoa Junction, 140 Wis. 211, 214, 121 N. W. 132; a barn, State v. Leaver, 62 Wis. 387, 393, 22 N. W. 576; shade trees, Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560; a clock such as here, Mueller v. Duluth, 152 Minn. 159, 188 N. W. 205; a guy rope, Rockport v. Rockport G. Co. 177 Mass. 246, 58 N. E. 1017, 51 L. R. A. 779. See the same rule as to awnings, bill-boards, and other structures in cases quoted in 13 Ruling Case Law, 186, 191, 197, and 29 Corp. Jur. 616.

There being no wanton on intentional injury of plaintiffs’ clock, there is shown here no breach by defendant of any duty or obligation placed by law upon its driver in the exercise of the unquestionable right to use the public highway in the manner and to the extent that he was doing, and therefore there can be no cause of action in plaintiffs’ favor.

Plaintiffs assert that.since by ch. 382 of the Laws of 1913, creating sec. 959 — 35w (now appearing rewritten.as sub. (1) (a.), sec. 66.05, Stats.), authority is given to municipalities to grant privileges to erect and maintain that which would otherwise .be an obstruction in the public highway, coupled with power to subsequently cause its removal, and that inasmuch as the public authorities have for a long time acquiesced in the maintenance of the clock, the plaintiffs have now established a right to keep the same. This statute, however, also provides a penalty for any one causing an obstruction contrary to its provisions.

No mere length of time of user, however, in absence of a statute so providing, can make, as against the' public, such an obstruction a lawful structure. Meiners v. Frederick Miller B. Co. 78 Wis. 364, 366, 47 N. W. 430; 29 Corp. Jur. 623; 20 Ruling Case Law, 498; Mueller v. Duluth, supra.

The plaintiffs not asserting any permission by the common council under such statute, it is not necessary to determine how far such a privilege, if granted, could make such structure a lawful one'. See Tilly v. Mitchell & Lewis Co. 121 Wis. 1, 13, 98 N. W. 969.

There is a plain causal connection between the position in which the dial of the clock was maintained over the public highway and the injury resulting to it by reason of defendant’s use of the highway and there is no force in plaintiffs’ contention to the contrary.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.