(dissenting). I dissent from the conclusion reached in this case. Especially do I disapprove of the intimation contained in the opinion that the tree in question constituted an insufficiency or want of repair of the street which imposed liability for damages upon the municipality by virtue of sec. 81.15, Stats.
That the tree constituted a menace to the safety of those using the street may be conceded. But it would have con*586stituted.the same menace had it been located inside the street line on defendant’s lot. If so located it certainly would not constitute a defect in the street. As it constituted the same menace whether located on the boulevard or on the lot, any proper designation of its character must apply equally to either location. In my opinion it is properly classed as a nuisance. If it had been located on defendant’s lot, the defendant would have been liable for the damage to plaintiff as and for maintaining a nuisance. Although the tree was located on the boulevard, defendant’s ownership of the tree is not denied-, nor is it disputed that under ordinary circumstances its liability resulting from its maintenance would be the same.
As I construe the opinion of the court, it is held that the ordinances of the city of Milwaukee, referred to in the opinion, place this tree under the exclusive control of the city, and absolve the lotowner from any liability for its maintenance. This in my judgment is an unwarranted construction of the ordinances quoted. The purpose of these ordinances manifestly was to enable the city to exercise some supervision and control over the aesthetic development of the streets. While they place certain limitations upon proprietary prerogatives, they by no means deny the lotowner the right of planting trees and shrubbery on the boulevard, nor do they prohibit the adjoining proprietor from suppressing a nuisance in the form of a dead tree existing on said boulevard. The ordinance simply requires an abutting lotowner to secure a permit from the board of park commissioners if he desires to plant, cut, prune, or remove any living tree or shrub, and he may plant shrubs and trees upon securing permission from the board of park commissioners. The removal of a dead tree is not prohibited.
This falls far short of withdrawing from lotowners all rights and liabilities in these respects. Zoning laws and ordinances constitute a quite similar limitation upon the right of the lotowner to do as he pleases with his own lot. To *587secure a permit from the board of park commissioners for the planting of trees and shrubs in the street constitutes gcarcely less a limitation upon proprietary prerogatives than ordinances requiring the lotowner to secure a permit to build a garage, repair his roof, or add a bay window to his residence. It has never been considered that this requirement has absolved a lotowner from the consequences of maintaining a nuisance upon his premises. Upon the same principle, the Majestic Realty Corporation should have been absolved from liability where defective terra cotta fell from a projection of its building, killing a pedestrian in the street, a situation under consideration in Majestic Realty Corp. v. Brant, decided herewith (198 Wis. 527, 224 N. W. 743). This defective terra cotta projected over the street. It constituted a menace to those using the street. It may be assumed that it could not have been repaired without first securing a permit from the building inspector.
If falling objects are to be construed as a defect in the street, why limit them to trees? If a requirement that a lotowner cannot plant trees or shrubs on the boulevard without securing a permit from municipal authorities absolves the lotowner from all liability for permitting dead trees, constituting a menace to the safety of those using the street, to remain therein, why not absolve the Majestic Realty Corporation from liability upon the same grounds?
The dead tree was a menace to the safety of pedestrians. So was the defective terra cotta. The defective terra cotta could not he repaired without a permit from the building inspector. The situation would be analogous if the dead tree could not be cut down without a permit from the municipal authorities. But it will be observed that the ordinance did not prohibit the cutting of the dead tree without a permit. In this respect the doctrine is carried further in .this case than would be necessary to carry it in order to absolve the Majestic Realty Corporation. The absurdity of applying such a doctrine in the Majestic Realty Corporation Case *588was so apparent that no one connected with that case even suggested it. But the distinction between the two cases is not one of principle. It is merely of degree. The situation in the Majestic Realty Corporation Case merely emphasizes the unsoundness of the principle here applied.
I am authorized to state that Mr. Justice Stevens concurs in these views.
On June 4, 1929, a motion for a rehearing was granted, and the cause was reargued on September 9, 1929.
The following opinion was filed November 5, 1929:
Stevens, J.(on reargument). When the court rendered its former decision, the case was considered as one which presented the question whether the defendant was liable for negligence in failing to keep the street in front of its property in a safe condition for public travel. Basing its decision on the rule of the sidewalk cases, there cited, the court reached the conclusion that defendant was not guilty of any negligence that rendered it liable to the plaintiff. The cases on which the court relied in its former decision were based upon the provisions of statutes and ordinances which impose liability upon local governmental units for the failure to perform a governmental function.
A re-examination of the case satisfies the court that cases dealing with liability imposed by statute or ordinance do not aid in determining the rights of the parties in this action, because liability in this case is dependent upon the rules of the common law which impose liability for the creation or the maintenance of a nuisance.
Liability for the creation or maintenance of a nuisance “extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.” 20 Ruling Case Law, p. 380. “A nuisance may exist not-only by reason of doing an act, but also by omitting to per*589form a duty.” Joyce, Nuisances, 2. “Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason óf a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material.” Lamming v. Galusha, 135 N. Y. 239, 242, 31 N. E. 1024. See, also, Joyce, Nuisances, 80.
In those cases where the nuisance is created by the defendant, no question of negligence or want of ordinary care is involved. In those cases liability for nuisance “does not rest on the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care.” 20 Ruling Case Law, p. 381. This rule finds illustration in the establishment of a tannery or a slaughter-house in the midst of a residential area, where the mere act of using the plant creates a nuisance. “Where the damage is the necessary consequence of defendants’ acts, or is incident to the business itself or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies.” Joyce, Nuisances, 28-9. The basis for liability is the damage done by or danger inherent in the creation or maintenance of that which constitutes a nuisance.
But there is a class of cases in which the acts or conduct of the defendant do not necessarily cause damage to others, in which the mere existence of danger does not create liability, unless the circumstances are such as to charge defendant with notice of the existence of the danger. The planting of shade trees in public streets, outside the limits of travel either upon the paved portion of the street or upon the sidewalk, does not ordinarily result in injury or damage to any who use the streets. Such trees, properly placed, do not constitute nuisances. But when such a tree, through decay or because of any change in the structure of the tree or in its surroundings, becomes a menace to the safety of those who travel the street, such tree may become a nuisance *590which will render the owner of the adjoining lot liable for injuries which may be caused to those who lawfully use the streets. In such cases where danger results, not from the planting of the tree, but through subsequent changes for which the defendant is not responsible, it is essential to liability that it be shown either that the defendant knew of the danger incident to the maintenance of the tree or that such condition had existed for such length of time that, by the exercise of ordinary care, the defendant ought to have discovered the danger and to have removed it before injuries were sustained by the plaintiff.
One who maintains a nuisance created by another is liable for injuries sustained because of the danger incident thereto just as clearly as if he had himself created the danger in the first place. “If the owner or the occupier of property continues a nuisance created thereon by others, he is liable, not because he owns or occupiés the premises, but because he does not abate the nuisance.” 20 Ruling Case Law, p. 392.
“There can be no doubt, under the authorities ancient and modern, that an ¿ction lies against him who erects, and against him who continues a nuisance erected by another. 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. 21, 33. “It is well settled that every continuance of a nuisance is, in law, a new nuisance.” Ramsdale v. Foote, 55 Wis. 557, 562, 13 N. W. 557.
The complaint alleges that the tree which fell and injured the plaintiff became “dangerous to those using such public sidewalk,” and that defendant, with notice and knowledge of that fact, “permitted said tree to remain” in a condition which endangered the safety of travelers. These allegation# state facts which entitle plaintiff to damages for the mainte nance of a nuisance.
The jury by their verdict have found the facts essential to establish a ’cause of action for the maintenance of a *591nuisance, that is, that the tree was da'ngerous to passers-by; that this condition had existed for such length of time that defendant ought to have discovered the dangerous condition and removed the tree before plaintiff sustained his injuries, and that defendant’s failure to do so was the proximate cause of the injuries sustained by the plaintiff. In order to establish liability for a nuisance it must be found that the nuisance was the cause of plaintiff’s injuries. The damage that may be recovered in actions based upon nuisance must always be the natural and proximate consequence of the danger created by the nuisance.
The ordinances of the city of Milwaukee regulating the planting and care of shrubs and trees in the public streets do not relieve the defendant of liability for the maintenance of a nuisance. They give the city the right to remove such a dead tree. But they in no way limit the power or affect the duty of the defendant to remove this dead tree which was clearly its property, although standing within the limits of the public street. Andrews v. Youmans, 78 Wis. 56, 58, 47 N. W. 304. The defendant had absolute domination over this dead tree with the power to remove it at any time. The law imposes upon the defendant the same liability for maintaining it as a nuisance that it would have imposed upon it if the tree had grown on its lot adjacent to the sidewalk.
The cases cited by appellant which hold municipal corporations liable for the insufficiency or want of repair of public highways and streets resulting from defective trees do not aid in determining the rights of the parties to this action. Assuming, without deciding, that such trees may constitute defects in streets, injury caused by such a tree may impose liability on the municipality and also upon the owner of the tree who maintains such a nuisance. In such cases the person suffering injury may have a choice of remedies. In removing the menace of the dead tree the lotowner is not performing any duty imposed upon the public. He is simply *592discharging the duty which the common law imposes upon him as the owner of a tree that has become a menace to the safety of those who travel the Street.
The mandate of the court contained in its opinion filed April 2, 1929, is vacated, and the judgment appealed from is affirmed.
By the Court. — So ordered.
Eschweiler and Crownhart, JJ., dissent.