Larson v. Furlong , 63 Wis. 323 ( 1885 )

LyoN, J.

During the last trial of this action, counsel for the defendant, in due and proper time, demanded that the ■ jury return a special verdict. This was refused, presumably for the reason that the learned circuit judge thought the plaintiffs were entitled, upon the uncontroverted evidence, to recover some damages. Hence the only question submitted to the jury was that of damages. In making this ruling we are satisfied that the judge overlooked the testimony upon at least one material fact in the case.

On the first appeal herein it was held, under the proofs, that the defendants had no right to interfere with the structure of the plaintiffs, although the same might have been a public nuisance, unless it caused them some special damage. There was no evidence on that trial of any such special damage, except that, should business be done over such structure, it might prove injurious to the business of the defendants. This was held not to be such an individual injury to the defendants as would authorize them to remove the structure. But, on the last trial, testimony was introduced by the defendants tending to show that it injured their dock and wharves. It appeared that when the wind was in a certain direction the structure of the plaintiffs ivas dangerous to vessels leaving the defendants’ wharf, and that in one instance a vessel so leaving was driven upon it and sunk.

■ Assuming that the plaintiffs’ structure ivas a public nuisance, this testimony tends to show, and, if uncontroverted, does show, that the defendants sustained special damage therefrom, which would give them the legal right peaceably to remove it. In such case, the only question for the jury on the merits of the action was whether, in removing it, they did more damage than was necessary to accomplish that purpose. If the testimony was controverted, then a question of fact was presented upon which the defendants were entitled to a special verdict.

"We think'the undisputed evidence shows that the plaintiffs’ structure was a public nuisance. It was erected in navigable waters, and did not abut the shore; the inner crib being about twenty feet distant therefrom. The shore at that point was the property of one of the defendants. ■ He proved title thereto, under a tax deed duly executed and recorded in 1869. The defendants also introduced in evidence the judgment roll in an action instituted by them against these plaintiffs, or some of them, in which it was determined and adjudged that in 1816 and afterwards the defendants had sufficient title to the land abutting the harbor at that point to entitle them to maintain trespass for injuries thereto. The defendants having such title and possession, it was impossible for the plaintiffs lawfully to connect their wharf with the shore, so as to use it in aid of navigation. Hence it was a public nuisance. This feature of the case, as well as the testimony showing that the plaintiffs’ structure inflicted sjiecial damage upon the defendants, seems to have been entirely ignored in the instructions to the jury.

Certain instructions were proposed on behalf of the defendants, which the court refused to give. These instructions embody, in the main, the views above expressed. In so far as they do so, they ought to have been given, or at least applied by the circuit court, and the refusal or failure to do so. was error fatal to the judgment.

The value of the stone used in the pier seems to have been included in the assessment of damages. It appears that the stone was taken from the land of the defendants. The., same was therefore their property, and they cannot lawfully be Required to pay the plaintiffs therefor, even though tire defendants converted them to their own use, which, to say the least, is doubtful, under the testimony.

As the case stands on the evidence, the only question for the jury (aside from that of damages, if the plaintiffs are entitled to recover) was whether the cLofendants did more damage than was necessary in removing the pier, and if they did so the defendants were entitled to a special verdict, Showing in what such excess-of injury consisted.

By the Oowt.- — ’The judgment of the circuit court is reversed, and the cause remanded with directions to award ft new trial.