Larson v. Furlong

8 N.W. 1, 50 Wis. 681, 1881 Wisc. LEXIS 4

• Court: Wisconsin Supreme Court
• Decided: January 11, 1881
• Status: Published

Opinion

Taylor, J.

It is not very clear upon what ground the learned circuit court ordered the nonsuit, but, from the grounds set out by the attorney for the defendants in moving for the nonsuit, it is probable that it was ordered for the reason that the plaintiffs had neither shown possession of the dock in question, nor a right tó possession.

If the nonsuit was ordered on that ground, we are'clearly of the opinion that it cannot be sustained. The plaintiffs showed that they had recently built the dock or cribs, and thereby they showed actual possession whilst such building was going on. Shortly before the defendants removed the cribs and stones, they had been enjoined from further prosecuting their work. There is no evidence that the plaintiffs abandoned the possession, and, on the other hand, the evidence shows that after they were enjoined from doing any further work, and up to the time the defendants removed the same, they kept watch over the work to s@e that it was not injured or removed. We think the evidence showed the possession of the dock or cribs in the plaintiffs at the time the defendants removed them. They had all the possession they could reasonably be required to have, and the acts of the defendants were a clear invasion of the plaintiffs’ possession of the dock or cribs, which had been constructed with their labor and money. The plaintiffs showed they had in their possession and control the timber and stones out of which, the cribs were made; and that they caused the same to be made with their money; that they placed them in the position they were in when the defendants took and converted them to their own use.. They clearly make out a prima, facie case of ownership, and, if the defendants question such ownership, the burden of proof is upon them to show that they have a better right. "We do not think the action is an action for trespass guare clausum upon the plaintiffs’ real estate. It is an action for the conversion of personal property owned by the plaintiffs, and as such the proof of possession and ownership was sufficient to entitle them to recover, unless the fact that the plaintiffs had placed their property in the navigable waters of Washington harbor was a forfeiture of their right of ownership, and gave the defendants, or any other person, the right to take such property for their own iise, on the theory that the «right of property in the cribs and stones placed by the plaintiffs in the navigable waters of the state was like the right of property in the fish inhabiting such waters — in no particular person,— and the first taker would become the lawful owner.

Upon this appeal the learned counsel for the respondents insist that the judgment should be affirmed, not only upon the ground above stated and taken by them in the court below, but upon the ground that the dock or cribs were a public nuisance, and for that reason the defendants had the right to remove the same and convert the material to their own use; and, second, upon the ground that the structure was a pourpresture, and the plaintiffs, if they ever had any title to the materials of which the cribs were constructed, lost such title by placing them in the navigable waters of the state. Admitting for the present that the dock or cribs were a public nuisance, is there anything in the evidence in the case which would justify the defendants in abating the same and converting the materials to their own use? It seems to be now well settled by the great weight of authority, that a private person can neither maintain an action to prevent the erection of or to abate a public nuisance, without alleging facts showing that he will suffer some special damage not common to the rest of the public by the erection of such nuisance, or, in an action to abate the same, that he has suffered some injury peculiar to himself and not common to the public. This doctrine is established beyond controversy by "Wood, in his work on the law of nuisances, by a very elaborate and exhaustive citation of the authorities. See §§ 618-676, inclusive, of that work. This rule has been recognized and affirmed by the decisions of this court. Walker v. Shepardson, 2 Wis., 384; S. C., 4 Wis., 486; Barnes v. Racine, id., 454; Carpenter v. Mann, 17 Wis., 155; Newell v. Smith, 23 Wis., 261; Greene v. Nunnemacher, 36 Wis., 50; Remington v. Foster, 42 Wis., 608.

It seems to us that it follows logically from this rule in regard to the maintenance of an action by a private person to prevent or abate a public nuisance, that if such private person undertakes to abate such public nuisance without action, in order to justify himself he must show that such nuisance was injurious to his private interests, and that he has suffered private damage, not common to the public, by the erection and continuance thereof. This proposition, we think, is also well established by the authorities cited by the learned author above quoted. See pp. 750-769, and cases cited. Upon this subject the author says: “The public, through the intervention of the law as administered by the courts, avenges its own injuries and remedies its own wrongs. No individual, under any circumstances, is justified in abating a purely public injury, and should he attempt the experiment he would find himself involved in serious consequences. Again, no one ever entertained an idea that a manufactory which, by reason of its operations, produced such noxious smells and vapors as to produce a public injury and become a nuisance, was at the mercy of any person who might see fit to enter into and destroy its machinery. If such were the rule, a stranger, who suffered no inconvenience from its operations, a resident of another city, town, or state even, might, with impunity, from motives of malice or mischief, prey upon the manufacturing or other interests of a community ad libitum. Such would he the legitimate fruits of the doctrine, and the law would thus be converted into a shield to be used by any man or set of men who desired to gratify their malice or other propensities for mischief. But no case has ever warranted such doctrine. The courts, with some few exceptions, which will be noticed hereafter, have always exercised the highest and most rigid caution in cases involving these questions.”

The following are some of the authorities supporting this doctrine: Blodgett v. Syracuse, 36 Barb., 529; Brown v. Perkins, 12 Gray, 89; Ely v. Supervisors, 36 N. Y., 297; Mayor of Colchester v. Brooke, 7 Q. B., 339; Dimes v. Petley, 15 Q. B., 276; Cobb v. Bennett, 75 Pa. St., 326; Cooper v. Marshall, 1 Burr., 260; Rex v. Pappineau, Strange, 688; Harrower v. Ritson, 37 Barb., 301; Griffin v. McCullom, 46 Barb., 561; State v. Keenan, 2 Ames (R. I.), 497. In the case of Brown v. Perkins, 12 Gray, 89, Chief Justice Shaw says: “The true theory of the abatement of a nuisance is, that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action; and also when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in case of an obstruction across a highway, and an unauthorized bridge over a navigable watei’-course, if' he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts of the commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mart this distinction; but we think, upon the authority of modern cases, where the distinctions are more accurately made, and upon principle, this is the true rule of law.” This doctrine has been approved by implication, if not expressly, in the following cases in this court: Castello v. Landwehr, 28 Wis., 522; Mohr v. Gault, 10 Wis., 513; Barnes v. Racine, 4 Wis., 454; Williams v. Fink, 18 Wis., 265.

The learned counsel for the respondent seems to admit the justice of the rule above stated,.but justifies his clients in abating what, if a nuisance at all, was clearly a public nuisance, on the ground that it was specially injurious to the plaintiffs. We fail to find any 'evidence in the case which shows that the defendants had any more right to complain of this erection in the public waters of the state than any other person. There is no evidence tending to show that it impeded persons approaching their docks or interfered in any way with the lawful use of their property. The cribs had not, at the time they were removed, been used for any purpose by the plaintiffs, and the intention to use them in the future in a way which might injure their business was no justification for their destruction. The nuisance, if any, was in the obstruction of the navigable waters of the state; and if that obstruction did not specially injure the defendants, they had no right to destroy it because its use might injure their business. If the dock had been used in the way it was intended to be, it would not have been a public nuisance. Such use would have been in aid of commerce and navigation, and lawful. If the plaintiffs had procured a public highway to be laid out on the island terminating at the shore of the harbor, and had connected their dock or cribs with such highway, with the assent of the public authorities, it would then have become a structure in aid of navigation, and would have been a lawful structure, unless so constructed as to unnecessarily obstruct the navigation of such harbor, within the rule laid down by this court in Diedrich v. Railway Co., 42 Wis., 248. The evidence does not show that defendants’ docks were such in their use as required the protection of the state and demanded the destruction of all other docks which would tend to relieve the public from the unjust monopoly of the trade of the island, which the evidence tended to show was held and controlled by the defendants.

It is very clear to us that the evidence does not show that the plaintiffs’ cribs or docks so injured or interfered with the rights of the defendants as to entitle them to recover damages of the plaintiffs for their maintenance, and therefore the defendants were not justified in removing them as a public nuisance. But, if the cribs were a private nuisance to the defendants, as well as a public nuisance to the state, the defendants would not be justified in converting the materials of the unlawful structure to their own use. The right of the defendants must be limited to the mere abatement of the nuisance, in so far as it affects their rights injuriously. Rex v. Pappineau, Strange, 688; Dimes v. Petley, 15 Q. B., 276. The right to abate does not include the right to convert the structure to the private use of the party injured thereby, and who abates the same. Wood on theLaw of Nuisances, 757, § 736. The property of a man does not become outlawed because he may have placed it where it becomes a public or private nuisance. If he has so placed his property that it becomes a private nuisance, he subjects it to the hazard of being injured by the aggrieved party to the extent necessary to remove the nuisance; but he does not thereby authorize the person injured to convert the property to his own use. If an individual should leave his wagon or other farming implements in the highway, or should pile his wood within its bounds, so that they became an obstruction to travel thereon, any one hindered or obstructed in traveling such highway might lawfully remove them out of the highway; but we think he would not be justified in taking them away and converting them to his own use. So, if the owner of a boat or raft of logs should anchor them in a navigable river, so as to obstruct the passage of other boats or rafts, the owners of such other boats would have the right to remove the obstructing boats or rafts, so as to enable them to navigate the river with their own, but they would not be justified in taking possession of the obstructing boat or raft and converting, it to their own use. /

It is claimed by the learned counsel for the respondents, not only that they were justified in abating the plaintiffs’ dock as a public nuisance, but that, under the decision of this court in the case of Diedrich v. Railway Co., supra, the plaintiffs lost all title to their property by placing it, without authority, in the navigable waters of the state. ¥e think the learned counsel is mistaken as to what was in fact decided in that case. The only thing decided in that case was, that a riparian owner could not extend his ownership over the bed of Lake Michigan beyond low-water mark by embankment from the shore, or by making a breakwater beyond such mark, and thereby causing the shore between low-water mark and the breakwater to fill up and become dry land, when such embankment or breakwater was not made in aid of navigation, or for the purpose of protecting the land of-the riparian owner against the wash of the lake. The railroad company had constructed the line of their road over what appeared at the time such decision was made to have been land made either by such embankment, or by the use of such breakwater; and the question was whether the land so formed was owned by Diedrich as a part of his lot adjoining the lake, or whether the title was in the state. The court held the title was in the state, because it was the established law of this state that the owners of lands bordering on Lake Michigan took no title to the lands under the waters of the lake, but that the title in fee to the lands covered by the waters of said lake was in the state, and that such title could not be divested by the unauthorized acts of the riparian owner. There was no question in the case as to what the rights of the parties would have been in an action of trespass for a breach of the close, in case the plaintiff had proved himself in the actual possession of the reclaimed land, and the defendant had entered as a mere trespasser, not claiming any zdght to enter under the state. In the Diedrich case the right of the railroad company to enter upon and take the lands in question, for the purposes of a railroad, was admitted by all parties, and the only question was, who held the legal title to the land taken and occupied by it. As the evidence in the case showed, as this court thought, that the locus in quo had been at one time a portion of the bed of Lake Michigan, and that such bed of the lake had not become a part of the dry land by accretion, or by any other means which by law divested the state of the title in fee which it had in such lands while covered by the waters of the lake, such title still remained in the state, and not in Diedrich.

In the case at bar there is no question as to the title in fee of the lands under the lake, where the plaintiffs placed their cribs or'dock. It is admitted that it is in the state. It is shown that the cribs were the property of the plaintiffs, and were in. their possession when the defendants removed and converted them to their own use. The fact that the plaintiffs’ property Avas placed on lands belonging to the state, does not make their rights, as against these defendants, different from what they would have been had they placed their property on the lands of a private citizen without his consent. In either case the defendants would have no right to interfere with it, unless by license from the person owning the lands upon which it was placed, or unless the property was a private nuisance to them, or a public nuisance from which they suffered special damage. The defendants having failed to show by the evidence in the case that they had the right to remove the same as a nuisance injurious to their rights, or that they had any authoz’ity from the state to remove the same, they have failed in showing any authority for interfering with the plaintiffs’ property, and the court was clearly wrong in ordering the nonsuit.'

By the Cow't. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.