Wisconsin Reports (Volume 51)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1881. Excerpt: ... McFarlane vs. The City of Milwaukee. have little or no bearing upon this. Scribner v. Holmes, 16 Ind., 142; James v. Jenkins, 34 Md., 1; Wilson v. Cochran, 46 Pa. St., 232; Lallande v. Wants, 18 La. Ann., 289, are analogous to the Katz Case, and lay down the same doctrine. The continuance and every use of that which is in its erection and use a nuisance, is a new nuisance, for which the party injured has a remedy for his damages. Cobb v. Smith, 38 Wis., 33. This action certainly lies against the defendant company, one of the owners of the dam and premises, which suffers the nuisance to continue, and derives a benefit from its continuance. By the Court.--The order of the circuit court is affirmed. Orton and Cassoday, JJ., took no part. Mcfarlane vs. The City Op Milwaukee. March 25--April 19, 1881. Charier of Milwaukee: Liability of city for injuries from defect in street. 1. The charter of Milwaukes of 1874 provides t.iat, in case of an injury to person or property in that city caused by any defect or incumbrance in a street, if such defect or incumbrance arises from the wrong, default or negligence of any person other than the city, such person shall be primarily liable for all damages for such injury; and the city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such other person. Held, that a complaint which shows that no action against the party primarily liable was commenced until five and a half years after the injury, and states no facts to explain the delay, or to show that the city, if held liable, would be injured by such delay, fails to state a cause of action against the city. 2. Whether, if the action against the person primarily liable were prosecuted with due diligence, th...