Will of Stark, 149 Wis. 631.

provision is made for children to take the share of a parent in case of the death of such parent prior to the happening of a given event, and in each case the most accurate and complete legal phraseology is used to express the idea. In view of these considerations, we have no hesitation in affirming the trial court's conclusions on the points presented by this appeal.

The judgment must be modified in accordance with this opinion so as to determine that the residuary estate shall remain undistributed until the time when the trust bequest to the children's hospital shall be earned or forfeited, at which time the residuary estate becomes vested in the then living beneficiaries named in the twenty-second item; that the surplus income, if any, of the residuary personal estate, past and future, over and above the sums required to pay the taxes and repairs on the homestead, be added to the general residuary estate; that the net income already derived from the residuary real estate be distributed to the present presumptive residuary legatees at once, and that the future income (except in case some part be necessary to defray taxes and repairs on the homestead) be annually distributed to the presumptive residuary legatees until the time when the amount of the residuary estate is determined and the status of the beneficiaries fixed as above set forth. In all other respects the judgment is cor

rect.

By the Court. The judgment is modified as indicated in the opinion, and as so modified is affirmed. All parties who printed briefs and appeared by counsel in this court will be entitled to tax their statutory costs, to be paid out of the

estate.

TIMLIN, J., took no part.

Jennings v. Johonnott, 149 Wis. 660.

JENNINGS, Appellant, vs. JOHоNNOTT and others, Respond

ents.

February 22-March 12, 1912.

Municipal corporations: Obstruction in street: Fences: Sidewalks: Trespass by city officials: Special verdict: Disjunctive finding: Omitted facts: Appeal: Presumption: Review: Parties entitled to allege error.

1. Secs. 1326 and 1330, Stats. (1898), relating to encroachments upon and obstructions of public highways, are applicable to cities.

2. Any object unlawfully placed within the limits of a highway is an obstruction if it impedes or seriously inconveniences public travel or renders it dangerous, even though it does not stop travel.

3. A fence in front of a city lot, extending only one foot into the street, is a mere encroachment so long as the fence and walk outside are continuous with those in front of the adjoining lots, but may become dangerous and an obstruction if a jog in the walk and fence is created by the building of a new fence and walk on the true line in front of an adjoining lot.

4. Although a question of a special verdict may be improper because embracing several propositions in the disjunctive, so that an affirmative answer does not indicate unanimous concurrence of the jurors upon any one of them, yet, where no error was assigned thereon and there was no request for separate questions, it will be presumed on appeal, under sec. 2858m, Stats. (Laws of 1907, ch. 346), that the trial court found in support of the judgment on the material issues not passed upon by the jury.

5. A party cannot assign error upon the admission of evidence concerning irrelevant matters in respect to which he first gave testimony, or which was brought out by his counsel either as part of his own case or on cross-examination of witnesses for the adverse party.

6. In an action against city officials for tearing down plaintiff's fence and constructing a sidewalk, where punitory damages were claimed, it was competent for defendants to assert that they acted in good faith in removing the fence (which intruded into the street) because it was necessary to build a new sidewalk and they wished to build it on the true line, upon which an adjoining walk had been built.

Jennings v. Johonnott, 149 Wis. 660.

7. If, in laying a new sidewalk in front of plaintiff's lot, city officials confined their operations to the street, they cannot be held guilty of a trespass, even though they ignored the provisions of the law to such an extent that plaintiff would not be chargeable with the cost of the new walk.

APPEAL from a judgment of the circuit court for Green county: GEORGE GRIMM, Circuit Judge. Affirmed.

The plaintiff is the owner of lots 3, 4, and 5, and the north five feet of lot 6, block 29, Carman's addition to the city of Monroe. This property is located on the east side of Adams street and had been inclosed by a fence for many years. Plaintiff also owned at one time other property lying immediately to the south of that described, and a board walk had been Inaintained adjacent to said property and on the east side of Adams street for about thirty-five years. One De Haven purchased from the plaintiff a parcel of ground immediately south of that above described as being now owned by her, and built a residence thereon during the year 1909. He desired to put in a cement sidewalk on Adams street adjacent to his property and he employed a surveyor to locate the street line. The survey showed that the fence which plaintiff maintained stood in the neighborhood of a foot in the street at the southwest corner of her property. De Haven built a cement walk in accordance with the survey, which, when finished, left a jog in the walk as above indicated. There was a boxed fence post which was eight inches square and which stood wholly in the street at the point indicated and there was a cap on the post which extended two inches further into the street. The fence extended into the street about three inches at the northwest corner of the plaintiff's property and was built on a comparatively straight line, so that it extended not less than three nor more than twelve inches into the street at any point. In the year 1910, when De Haven built his fence, the city authorities served notice on plaintiff requesting her to build a walk of the same material in front of her property, and some of them testified that she agreed to do so. However, she neg

Jennings v. Johonnott, 149 Wis. 660.

lected to build the walk, and during the month of October, 1910, the city authorities tore down the fence and constructed a walk. Plaintiff brings this action against them to recover damages for the alleged trespass committed.

The jury found (1) that the fence was within the east line of Adams street; (2) that it was so far within the east line of the sidewalk ordered to be built in May, 1910, as to necessitate its removal in order that the walk might be built as ordered; (3) that in May, 1910, plaintiff had knowledge of the fact that the fence was so located with reference to the sidewalk; (4) that plaintiff had knowledge of the fact that the fence was so located with reference to the sidewalk at the time she promised to build the sidewalk in September, 1910; (5) that the fence in question incommoded, hindered, or endangered public travel along the east side of the street; (6) that defendants used reasonable care in removing the fence; (7) that the cost of replacing the fence in as good condition as it was prior to its removal would be $12.50; (8) that defendants were not actuated by wilful or malicious motives in removing the fence; (9) that plaintiff was not entitled to punitory damages. From a judgment rendered for defendants on this verdict plaintiff appeals.

For the appellant there was a brief by F. W. Hall and John L. Sherron, and oral argument by Mr. Hall.

For the respondents there was a brief by A. S. Douglas, attorney, and Jeffris, Mouat, Oestreich & Avery, of counsel, and oral argument by L. A. Avery.

BARNES, J. The provisions of secs. 1326 and 1330, Stats. (1898), are applicable to cities. Sec. 1347, Stats. (1898); State v. Leaver, 62 Wis. 387, 22 N. W. 576; Pauer v. Albrecht, 72 Wis. 416, 39 N. W. 771; State v. Pomeroy, 73 Wis. 664, 41 N. W. 726; Hubbell v. Goodrich, 37 Wis. 84.

The principal question in the case is whether the fence constituted an obstruction within the meaning of sec. 1326, Stats.

Jennings v. Johonnott, 149 Wis. 660.

(1898), or an encroachment within the meaning of sec. 1330. If the former, the city officials might summarily remove it; if the latter, they might not. Any object unlawfully placed within the limits of a highway is an obstruction if it impedes or seriously inconveniences public travel or renders it dangerous, and it is not at all necessary that such object should stop travel in order to be an obstruction. The cases so holding are numerous. Neff v. Paddock, 26 Wis. 546, 552; Hubbell v. Goodrich, 37 Wis. 84, 86; State v. Leaver, 62 Wis. 387, 392, 22 N. W. 576; State v. Pomeroy, 73 Wis. 664, 665, 41 N. W. 726; Chase v. Oshkosh, 81 Wis. 313, 319, 51 N. W. 560; Bartlett v. Beardmore, 77 Wis. 356, 365, 46 N. W. 494; Konkel v. Pella, 122 Wis. 143, 146, 99 N. W. 453; Jones v. Tobin, 135 Wis. 286, 115 N. W. 807.

Undoubtedly up to the time the De Haven walk was built the fence was merely an encroachment. The building of this walk on the correct line materially changed the situation, and what was before an encroachment might then become an obstruction. Four witnesses testified that the fence constituted an obstruction dangerous to public travel. The reasons advanced for this conclusion were: (1) pedestrians walking along the east side of the De Haven walk might thoughtlessly run into the post; (2) school children running along carelessly might bring their faces and eyes in contact with the cap on the post; (3) pedestrians walking northward on the De Haven. walk when it was dark might run against the post and suffer injury; (4) three persons walking abreast could not pass the jog in the walk without one of them dropping back. We think this evidence was sufficient to warrant the jury in finding that the fence was dangerous to public travel and therefore an obstruction. Neale v. State, 138 Wis. 484, 487, 120 N. W. 345. This issue was submitted to the jury by the following question: "Did the fence in question incommode, hinder, or endanger public travel along the east side of said street?" To which the jury answered "Yes." The question