Judge Brady rests his judgment mainly upon the assumed fact that the spiles were an obstructionlfo the highway not created by the defendants, but by strangers. 4 This assumption of fact is not, in my judgment, borne out by the evidence. The- spiles were really a part and parcel of the pier. The original lessee covenanted to keep the pier in good repair, and the Steamship Company, as assignees of such lessee, assumed this covenant. The company found some spiles attached to the pier; but these spiles were decayed and worthless. The company then, as was not only their right, but their duty under the covenant, repaired the pier by the substitution of the new spiles in question for the old and useless ones which they had found.
The verdict can be sustained upon another ground. It is in evidence that the corporation had given its verbal consent *153to the placing of the spiles. The witness was not interrogated as to the particular officer from, whom this consent was obtained, but the general fact was not controverted. Such consent of itself established the defendants’ liability, and that without notice, express or implied, of its having been acted upon. The fallacy is in treating the consent merely as a piece of evidence from which notice might be inferred, rather than an independent fact which dispensed with the necessity of proof of notice.
Again, the pier was in the physical occupation of the defendants, and they were actively engaged in the work of rebuilding it, at the time of the accident. Had the company been sued, they might well have pleaded that they had been relieved by these facts from their covenant to repair, and that the defendants had, for the time being, assumed an exclusive obligation in that respect.
In no aspect of the case, viewed with reference to its special facts, was the question of notice of the condition of the spiles, material or relevant.
I think the judgment should be affirmed.
Judgment reversed.