Karle v. Town of Commonwealth ( 1940 )

Action begun April 13, 1940, by Rudolph Karle against the town of Commonwealth for personal injuries. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

The substance of the complaint is that because of the relocation of State Trunk Highway No. 101 in the town of Commonwealth, its town board passed the following resolution:

"Be it resolved by the board of supervisors of the town of Commonwealth, Florence county, that the portion of old state trunk highway No. 101 so abandoned and located easterly and southerly of the new highway No. 101 in the N 1/2 of the NW 1/4 and the NW 1/4 of the NE 1/4 of said Sec. 31, be officially abandoned and closed to public travel after state trunk highway No. 101 is constructed and open to traffic on the new location.

"This resolution shall be effective providing the individual landowners, whose lands are immediately adjacent to the highway to be abandoned, are also in agreement with the closing of this portion of old highway No. 101."

None of the owners of the land adjoining objected to the closing of that portion of the highway. The complaint further proceeds with the allegations that a culvert was removed from the abandoned portion of the highway; that the plaintiff was a guest in a car being driven over the abandoned portion of the highway and that plaintiff was injured when the car in which he rode ran into the ditch left by the removal of the culvert. A demurrer to the complaint was sustained and because no other facts existed to, sustain the cause of action, it was ordered that the complaint be dismissed and judgment was accordingly entered. The appellant bases his claim for recovery of damages entirely upon the proposition that a nuisance was maintained by defendant. It is a general rule that a community has no more right to erect and maintain a nuisance than a private individual possesses. Although the complaint is somewhat indefinite as to who removed the culvert, thus creating what is claimed to be the nuisance, it may be said that the allegations of the complaint do not show the acts to have been those of the respondent. The concession made upon the argument that the culvert was removed by others than the town warrants a determination of the cause presented as though the complaint were made more definite and certain upon that point. Waube v. Warrington, 216 Wis. 603,258 N.W. 497, 98 A.L.R. 394.

The car in which appellant was riding when injured came from a farmhouse and entered the abandoned highway at the place where the private road intersected it. No, barriers or signs were at that particular point to warn the driver of the abandonment of that section of the highway. Appellant admits the place where the alleged nuisance existed was on property belonging to individuals because the stretch of old road had been abandoned and therefore reverted to private ownership, but he contends it was the duty of respondent to have informed the new owners of the condition existing on the land thus passing to their control by the abandonment proceedings, and cites authorities which he contends sustain his argument. Those authorities might apply if this were a case where the community stood in the position of a proprietor. The resolution of the town board, under which the land formerly traversed by the highway was abandoned as a highway, was but a formal step in the process and no cause of action is here asserted of failure on the part of the town to barricade or place warning signs at the point where plaintiff and his host turned into the abandoned portion of the old highway.

No cause of action being set forth on which appellant may recover against the respondent and it being conceded that no further facts bearing upon the matter exist, the demurrer was properly sustained and the complaint must be dismissed.

By the Court. — Judgment affirmed.