Chase and another vs. The City of Oshkosh, walks free and clear of obstructions for the use of persons traveling over and along the same; and there can be no doubt but that the city would have been liable in damages to any person traveling along and over the walk in question, in the night-time, who, without fault on his part, had been injured by running against these trees situated within. the limits of the walk. There can be no doubt but that the common council had the right, therefore, to treat them as obstructions to the public travel, and a nuisance, and to abate the nuisance in the manner they did, to protect the public in the lawful use of the sidewalk, and the city from liability for injuries which might be sustained by persons passing along and over it and who might be injured by such obstructions. Whether the trees were obstructions to travel and ought to be removed in order to make the sidewalk reasonably safe for travel, was, we think, a matter within the quasi legislative discretion conferred on the common council by the city charter. The charter of the city gives the common council, under various subdivisions of sec. 3, subch. VI, ch. 183, Laws of 1883, power, by ordinance, resolution, or by-law, when it deems it expedient, “to prevent the incumbering of the streets and sidewalks," and to "control and regulate the streets, and to remove and abate any obstructions and encroachments therein," and to "protect the same from any encroachment or injury," and "to prevent, prohibit, and cause the removal of all obstructions in and upon all streets in said city;" and the provisions of ch. 52, R. S., on the subject of encroachments and obstructions on streets and highways, are not applicable, because special provisions are made in the charter of the city of Oshkosh, inconsistent therewith (R. S. sec. 1347); and by the charter of the city it is provided that "no general law of this state, contravening the provisions of the charter, shall be considered as repealing, annulling, or modifying the same, unless such purpose be Chase and another vs. The City of Oshkosh. expressly set forth in such law as an amendment of this charter" (Laws of 1883, ch. 183, subch. XIV, sec. 25); and this provision was in force when the present revision of the statutes was adopted (Laws of 1877, ch. 123, subch. XIII, sec. 25). Similar provisions have existed in the various charters of cities in this state from an early day. Inasmuch as the discretion and judgment of the common council in respect to these matters cannot be revised by the court or jury, there being no evidence tending to show an abuse of it, the court ought not to have submitted it to the jury to find whether: "(1) Did said trees incommode or hinder the public use and enjoyment of said street or sidewalk? (2) Did said trees injure said street or sidewalk, or interfere with travel?" It was not seriously contended on the part of the plaintiffs but that the city authorities might authorize the removal of the trees; but it was claimed that they constituted an encroachment, and were not obstructions to the walk or street, and that they could not be removed without a hearing on notice. An encroachment is a gradual entering on and taking possession by one of what is not his own; the unlawful gaining upon the rights or possessions of another. The fencing in or inclosing of a portion of a street or highway by a fence or wall, or the occupancy of it, would be an encroachment; and, as there may be uncertainty as to the exact line of the street or highway, it may be necessary, in order to remove it, that notice be given, so that the question of encroachment may be first passed upon by a jury. An obstruction is a blocking up; filling with obstacles or impediments; an impeding, embarrassing, or opposing the passage along and over the street,- and, to constitute it such, it need not be such as to stop travel. The provisions in the city charter on the subject of encroachments and obstructions of streets and sidewalks give very extensive and comprehensive powers to the common council, of a quasi legislative character, Chase and another vs. The City of Oshkosh. but without any particular directions as to the manner of their exercise; and these powers are peculiarly adapted to the needs of a growing and populous village or city. They are not only very comprehensive and far-reaching, but they clearly extend to the cutting down and removal of the trees in the manner adopted in the present instance, as they were manifestly obstructions to the sidewalk, although room was left on the walk for foot travel to pass. It was not necessary, in order that they should constitute an obstruction, so as to authorize their removal, that they should interrupt or stop travel. The case of State v. Leaver, 62 Wis. 392, is decisive on this subject. It surely cannot be maintained that the plaintiffs have the right to plant and maintain other trees in their place within the sidewalk, or that other lot-owners can plant in like manner and maintain trees thus situated. As already stated, the plaintiffs had a right of property in the trees, in the sense that they might have cut or removed them, or maintained an action against any one who did so, not acting under authority of the common council; but it does not follow that they had the right to keep and maintain them standing within the sidewalk, in defiance of the resolution of the common council insisting, in the interests of the public, on their removal. The case of Pauer v. Albrecht, 72 Wis. 416, is clearly not in point; for it was a case of an encroachment, and the charter did not contain provisions authorizing the removal of encroachments, and the proceedings had to be, if at all, under the general statute. A permanent obstruction, such as trees standing within a sidewalk or traveled street, or stone columns which may interfere with public travel, constitutes per se a public nuisance, and may be summarily removed by direction of the common council. The circuit court, upon the entire case, ought to have directed a verdict for the defendant. For these reasons, and James v. Davidson and others. for error in refusing the instructions asked by the defendant, the judgment of the circuit court must be reversed. By the Court. The judgment of the circuit court is re versed, and the cause is remanded for a new trial. See note to this case in 15 L. R. A. 553.— REP. JAMES, Respondent, vs. DAVIDSON and others, Interveners, Appellants. February 2— February 23, 1892. Actions by subcontractors against county: When may be maintained: Estoppel: Priority. 1. An action under sec. 3328, R. S., by a subcontractor against a county cannot be maintained until there is something actually due from the county to the principal contractor. 2. Under a contract for the building of a court house twenty per cent. of the contract price was to be reserved by the county until the completion of the work. The principal contractor threw up the contract before completing it. He had received the eighty per cent. due him for all the work he had done. The plaintiff, a subcontractor, brought an action under sec. 3328, R. S., against the county and recovered judgment, the trial court finding that after deducting from the amount reserved by the county the cost of completing the building there would be a balance due the principal contractor. The county did not appeal, but an appeal was taken by other subcontractors who had brought subsequent actions and had intervened in plaintiff's action. Held, that as nothing was due from the county to the principal contractor when the appellants' actions were commenced, they could not attack the judgment on the ground that nothing was so due when the plaintiff's action was commenced. 3. Neither could the appellants object to a payment made out of the reserve fund to the principal contractor before any of their actions were commenced, it not being claimed that such payment was fraudulently made. 4. Actions by subcontractors under sec. 3328, R. S., are the equivalents of garnishee actions, and the commencement of each such action gives the plaintiff therein priority over other subcontractors commencing their actions later. VOL. 81-21 James vs. Davidson and others. APPEAL from the Circuit Court for Richland County. The defendant Russell, who is the principal debtor, contracted with Richland county, in April, 1889, to build for it a court house at a stipulated price. The contract provided for monthly estimates and payments as the work progressed, and that the county should retain twenty per cent. of such estimates as security for the ultimate performance of the contract by Russell. November 1, 1889, the county held as such reserve fund $4,317, but subject to deductions of about $900 on account of certain changes in the plans of the building. Between December 2, 1889, and January 14, 1890, the county made payments to Russell out of the reserve fund, amounting to between $1,600 and $1,700. Estimates were made January 1 and 11, 1890, which added about $550 to the reserve fund. January 14, 1890, Russell threw up his contract, being unable to complete the building, and the county proceeded to complete it, paying the cost thereof out of the reserve fund, as provided in the contract. December 6, 1889, this plaintiff, who was a creditor of Russell to the amount of $760 for materials sold to him and used in such building, brought this action against Russell and the county, under sec. 3328, R. S., to recover his demand and enforce payment thereof out of moneys alleged to be due from the county to Russell, the principal contractor. After December 6, 1889, and before January 14, 1890, two other subcontractors of Russell brought similar actions against him and the county. One of these claims was for $816, and the other for $318, both for materials sold to Russell and used by him in such building. January 31, 1890, the appellants Davidson & Sons brought a similar action against the same parties to recover $950, which Russell owed that firm for materials sold to him and used in such building; and on March 11, 1890, the appellant The Thorn Shingle & Ornamental Company, also a subcontractor of Russell, |