Arpin v. Bowman

53 N.W. 151, 83 Wis. 54, 1892 Wisc. LEXIS 202

• Court: Wisconsin Supreme Court
• Decided: September 27, 1892
• Status: Published

Opinion

Winslow, J.

As to the defendant Bowman, the nonsuit was right. The agreement which he made with Munger, so far as acted on, amounts simply to a consent that Munger might repair the dam. The contract does not show that Bowman thereby authorized Munger to erect or maintain an illegal structure, and such authority will not be presumed; nor does the evidence show that Bowman took any part in the repairs, or in any way approved Munger's acts in raising the dam. The contract must therefore be construed as simply empowering Munger to repair and maintain the dam at its legal height, which under ch. 424, P. & L. Laws of 1866, was three feet above the usual low-water mark.

As to Munger the question is different. There was ample evidence to show that he raised and maintained the dam at a height of about six feet above low-water mark, when he only had the right to raise it three feet above that mark. So far as it exceeded the height allowed by ch. 421, supra, it was an illegal structure, maintained by Munger in a public water way, and the plaintiff had introduced sufficient evidence to require submission to the jury of the question whether his rafts were broken by reason of the illegal height of the dam.

It is said that Munger simply continued a pre-existing nuisancé, and that he cannot be held liable without notice to abate it, under the doctrine of Slight v. Gutzlaff, 35 Wis. 675, and Penruddock's Case, 5 Coke, 100. We do not question the well-established principle recognized in Slight v. Gutzlaff, as applied to nuisances existing on private property when continued by a lessee or grantee. Manifestly, the rule should not obtain where a person rightfully using a public highway is injured by reason of an illegal obstruction maintained therein, and we are satisfied that it does not obtain. Irvine v. Wood, 51 N. Y. 224; Cooley, Torts (2d ed.), 729, and notes.

It is said that the effective height of the dam was only the height of the slide or chute, and consequently that, although the major portion of the dam may have been six feet above low-water mark, it should be held to be no higher than the part composing the chute. We cannot adopt this view. The chute is a part of the dam, but it cannot be said to be the dam. The' dam must be held to mean the entire structure.

The defendants took the examination of the plaintiffs under sec. 4096, R. S., before the trial, and taxed' as a disbursement the officers’ charges for taking such deposition. The plaintiffs excepted to the taxation of this item, and’ claim that it is not properly taxable. We are of the opinion that the item is properly taxable.

By the Court.— Judgment affirmed as to defendant Bowman, and reversed and cause remanded for a new trial as to defendant Munger.