SECTION 30.-ABATEMENT OF NUISANCES-RECOGNITION AND VALIDITY OF POWER NEFF v. PADDOCK et al.' (Supreme Court of Wisconsin, 1870. 26 Wis. 546.) Trespass quare clausum for the removal of plaintiff's fence. Defense, that the locus was part of a well-known and long-traveled highway, upon which plaintiff had willfully built his fence, and that defendants removed it by direction of the town board of supervisors, doing no unnecessary damage. * COLE, J.* * * The court in effect instructed the jury that if they found that the fence erected by the plaintiff in the highway extended more than six feet from the East line of the road into the same, so as to endanger or inconvenience travel thereon, then it was the duty of the supervisors to cause the fence to be removed, doing no unnecessary damage, and that such action on their part was lawful. The plaintiff removed his fence into the middle of the highway, and by so doing committed a nuisance. It was the duty of the supervisors to cause the fence to be removed summarily. The public have the right to an uninterrupted passage along the highway for themselves and carriages; and it is the clear legal duty of the supervisors to cause all obstructions to be removed which seriously interfere with or impede the exercise of this right. It would be a most serious defect in the law if in the case of a palpable obstruction of a highway, which interrupts its use and discommodes and endangers the safety of travelers, the public authorities had not the right to remove it without delay. We do not think that such is the law in this state. Lemon v. Haydon, 13 Wis. 159; Wyman v. State, Id. 663; Wetmore v. Tracy, 14 Wend. (N. Y.) 250, 28 Am. Dec. 525. * * * 5 4 Only a portion of the opinion of Cole, J., is printed. 5 Wetmore v. Tracy, 14 Wend. (N. Y.) 250, 28 Am. Dec. 525 (1835), was a case of abatement by private individuals. The doctrine of the earlier New York cases (Hart v. Mayor of Albany, 9 Wend. [N. Y.] 589, 24 Am. Dec. 165 [1832]; Meeker v. Van Rensselaer, 15 Wend. [N. Y.] 397 [1836]), that any individual may abate a public nuisance, is changed by Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44, 62 (1864), which holds that no one has the right to abate a public nuisance, unless he has himself sustained some damages not sustained by the rest of the community. Blackstone, bk. 3, c. 1, says: "If a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way may cut it down and destroy it," and "such nuisance may be abatedthat is, taken away or removed-by the party aggrieved thereby, so as he commits no riot in the doing of it." So especially there is no common-law right of summary abatement by individuals, where the nuisance consists only in the violation of the law, as, e. g., the illegal sale of liquor, see Brown v. Perkins, 12 Gray (Mass.) 89 HUBBELL v. GOODRICH et al. (Supreme Court of Wisconsin, 1875. 37 Wis. 84.) Appeal from the circuit court for Sauk county. This action is to recover damages for an alleged trespass by the defendants in entering upon the lands of the plaintiff and taking down and removing a fence. The answer avers that the locus in quo is a public highway; that the defendant Goodrich, who was then overseer of highway in the road district in which such lands are situated, entered upon the plaintiff's said land, and, with the assistance of the other defendant, removed such fence out of the highway, doing no unnecessary damage; and that he removed the fence by order of the supervisors of the proper town. The testimony given on the trial of the action tends to prove these averments of the answer, and also tends to prove that the fence was an obstruction to travel on the alleged highway. The jury found for the defendant, a motion for a new trial was denied, and judgment against the plaintiff for costs was duly entered. The plaintiff appealed from such judgment. LYON, J. 1. The supervisors are charged by law with the care of the highways in their respective towns, and it is their duty to give directions for repairing the same, and from time to time to require overseers of highways therein to perform their duties. Rev. St. c. 19, § 1 (Tayl. St. p. 477, § 1). The supervisors have power, and it is their duty, to cause the summary removal of any public nuisance found in any highway under their jurisdiction. Neff v. Paddock, 26 Wis. 546. And to this end they may require the overseer in whose district it is located so to remove the same. Any obstruction in or encroachment upon a highway, which unnecessarily impedes or incommodes the lawful use of such highway by the public, is a public nuisance, and may be summarily abated. Angell on Highways, 223, 274. 2. The supervisors also have the power, as we think, to cause the summary removal of any structure unlawfully and willfully placed within the limits of a highway by any person, although the same is not a public nuisance. As to the signification of the word "willfully," as here used, see State v. Preston, 34 Wis. 675. (1858); Earp v. Lee. 71 Ill. 192 (1873); Gray v. Ayres, 7 Dana (Ky.) 375, 32 Am. Dec. 107 (1838). Where the right of any individual to abate a nuisance is recognized, it may be exercised, a fortiori, by an officer. Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109 (1882); Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830 (1885). But such abatement must be unaccompanied by a breach of the peace. Rex v. Rosewell, 2 Salk. 459 (1699); Day v. Day, 4 Md. 262 (1853). See F. J. Goodnow, Summary Abatement of Nuisances, Columbia Law Review, II, 203. 3. But where the obstruction or encroachment is not a public nuisance, and was not willfully placed in the highway (as where it was placed there by inadvertence or carelessness, without any intention to obstruct the highway), we are of the opinion that the supervisors have no power to cause the summary removal thereof. The remedy given by the statute must be resorted to in such a case. Rev. St. c. 19, §§ 102 to 108 (Tayl. St. p. 508, §§ 138 to 144); Wyman v. State, 13 Wis. 663. The learned circuit judge instructed the jury that the defendants were not liable for removing such portion of the fence as was in a public highway, and that if all of the fence removed by them was within the highway the defendants were entitled to a verdict. This instruction is not qualified in any manner, and it entirely ignores the principle last above stated. Under it the action might be defeated even though the fence was not a public nuisance, and was not willfully placed there by the plaintiff; in which case, as we have seen, the town authorities had no power to remove it summarily. We do not know but the verdict was predicated upon precisely such a state of facts; for the testimony does not conclusively prove either that the fence was a public nuisance, or that it was willfully placed there by the plaintiff. It was error, therefore, to give the above instruction; and because the error may have injured the plaintiff, there must be another trial. Judgment reversed, and new trial awarded. • The English authorities are silent as to the power of officers, such as surveyors of highways, etc., to remove or abate nuisances, apart from statute, without judicial order or conviction. See Shaw's Parish Law, 1750. A sheriff or constable seems to have no such power, by virtue of his office, by the common law. The statutes were slow in granting such power. See 13 Geo. III, c. 78, § 12 (only after 20 days' notice), and 5 & 6 William IV, c. 50. §§ 69, 73. See 2 Ell. & Bl. 748; also 57 Geo. III, c. 29 (Michel Angelo Taylor's Act, relating to London, a private act) § 65. For American legislation, see the following: "Section 1. * The surveyors are hereby empowered to cut down, dig up, and remove, as well all sorts of trees, bushes, stones, fences, rails, gates, inclosures, or other thing or things, as may any ways straighten, hurt. hinder, or incommode the highways." "Sec. 5. If any person * shall erect or set up any gate, rails, or fence upon or across any highway or country road, or continue any such road to the annoyance and incumbrance of the same (other than such as shall be allowed by the court of quarter sessions within the county), it shall be deemed a common nuisance, and it shall be lawful for any person or persons to pull down and remove the same." 1 Rev. St. N. Y. 1829, p. 521: "Sec. 103. In every case where a highway shall have been laid out, and the same has been or shall be encroached upon by fences, * the commissioners of highways shall, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended. The commissioners making the order shall cause the same to be reduced to writing and signed. They shall also give notice in writing to the occupant of the land, to remove such fences within sixty KING v. DAVENPORT, Executor. (Supreme Court of Illinois, 1881. 98 Ill. 305, 38 Am. Rep. 89.) Mr. Justice SHELDON delivered the opinion of the court." The city of Jacksonville, in this state, having power, by ordinance, to establish fire limits and to declare the building or repairing of buildings with combustible materials within the fire limits a nuisance, its city council did, by ordinance, establish fire limits, and enacted that any building built or repaired with other than fire-proof material, or any roof or gutter placed on any building, the outer surface of which was made with materials other than fire-proof, if within the fire limits, and done without permission, should be deemed a nuisance, and that if the offender, upon reasonable notice, failed to remove such wooden building, or wooden part of such building, the city marshal, upon the written direction of the mayor, should "remove or tear down such building, or such part thereof as may be necessary." The ordinance further provided, that the offender should be subject to a fine of $100 for each week he failed to remove such wooden building, or wooden part thereof, and that if the city caused the removal, the expense of the removal might be recovered of the offender. The plaintiff's testatrix violated this ordinance by taking off an old and out of repair shingle roof from her building, situated within the fire limits, and putting thereon, without permission, a new shingle roof. She failing to remove the same upon due notice, the roof was removed by the city marshal, in conformity with the ordinance. She brought this suit of trespass against the mayor and marshal of the city for the removing of the roof, and dying since the bringing of the suit, her executor was substituted as plaintiff. The defendants justified under the ordinance, and on trial by the court, without a jury, judgment was rendered against them for $175, which, on appeal to the Appellate Court for the Third District, was affirmed, days. Every such order and notice shall specify the breadth of the road originally intended, the extent of the encroachment, and the place or places in which the same shall be. "Sec. 104. If such removal shall not be made, within sixty days after the service of such notice, the occupant to whom the notice shall be given shall forfeit the sum of fifty cents for every day, after the expiration of that time for which such fences shall continue unremoved.” In Wetmore v. Tracy, 14 Wend. 250, 28 Am. Dec. 525 (1835), this was held not to supersede the common-law remedy by abatement. The following words were added to this section by chapter 300 of Laws of 1840: "And the commissioners of highways may remove or cause to be removed such encroachment, and the occupant of the premises shall pay to the commissioners of highways all reasonable charges therefor." Revised Municipal Code of Chicago, § 1862: "Sec. 1862. The commissioner of public works may direct the removal of any article or thing whatsoever, which may encumber or obstruct any street, avenue or alley in the city." 7 Only a portion of the opinion of Sheldon, J., is printed. and then the present appeal taken, the proper certificate having been made to authorize it. The sole question here presented is upon the validity of the ordi nance. By its charter the following legislative power is delegated to the city of Jacksonville: "The city council, for the purposes of guarding against the calamities of fire, shall have power to prohibit the erection, placing or repairing of wooden buildings within the limits prescribed by them, without their permission, and direct and prescribe that all buildings within the limits prescribed shall be made or constructed of fire-proof materials, and to prohibit the rebuilding of wooden buildings; to declare all dilapidated buildings to be a nuisance, and to direct the same to be removed, repaired or abated, in such manner as they shall prescribe and direct; to declare all wooden buildings which they may deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and to require and cause the same to be removed or abated in such manner as they shall prescribe. "And, generally, to establish such regulations for the prevention and extinguishment of fires as the city council may deem expedient. "The city council shall have power to pass, publish, and repeal all ordinances, rules and police regulations, not contrary to the Constitution and laws of the United States and of this state, * * * ог proper to carry into effect the powers vested by this act in the corporation; to determine what shall be a nuisance and provide for the punishment, removal and abatement of the same; and also to punish violations of its ordinances by fines, penalties and imprisonment,” etc. "To define and declare what shall be nuisances, and authorize and direct the summary abatement thereof." There is here given ample authority, we think, for the passage of the ordinance in question. The inquiry then must be, whether the enactment of such a law is within the competency of legislative power. Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all, says Chancellor Kent, be interdicted by law in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. 2 Kent, Com. 340. The right to restrain owners of land in towns from erecting wooden buildings, except under certain restrictions, has never been doubted, or, if it has been, the doubt has long since been removed. Commonwealth v. Tewksbury, 11 Metc. (Mass.) 58. Such regulation is but "a just restraint of an injurious use of property, which the Legislature have authority to make." Id. 59. But the particular respect in which the ordinance |