Bishop v. City of Centralia , 49 Wis. 669 ( 1880 )

Taylor, J.

The real question in the case, and the only one upon which the appellant relies for a reversal of the judgment, is that the sidewalk where the accident happened was not in one of the public streets of the city, which it was bound by law to keep in a safe condition, but that such street sidewalk was a part of the bridge owned by the county of Wood, and for the sufficiency of which said county was alone responsible. The county purchased said bridge of the bridge company in 1873, under the provisions of section 6, ch. 178, Laws of 1865. Said section reads as follows: “Section 6. The county of Wood shall have the right, at any time after five years from the time fixed by this act for the completion of said bridge, to purchase the same by paying to the said company tbe value at wbieb the same shall then be appraised, to be ascertained by three disinterested appraisers, not residents of Wood county, one of whom shall be elected by said company, another by said county, and the third by the two so chosen, who, upon their oaths, shall appraise the said bridge and its appurtenances, including toll house and the soil or landing place on which the ends of said bridge shall rest, and the right of way thereto, if the same shall belong to said company, at their fair value; and, upon the payment by said county to said company of the appraised value of said property, as ascertained by the award, in writing, of said appraisers or a majority of them, within one year after the date of said award, the said bridge shall become a free bridge; but the franchise hereby granted to said company shall continue until said county shall purchase said bridge.”

The county of Wood having purchased the bridge audits appurtenances under the provisions of this section, this court held, in the case of The State ex rel. Neeves v. The Supervisors of Wood County, 41 Wis., 28, that it became the duty of the county to keep the same in repair, notwithstanding that it was a free bridge, and, upon the application of residents and land-owners of the cities of Centralia and Grand Rapids, granted a mandamus to compel the county to repair the same. In that case, as in this, it was argued by the counsel for the county', that the purchase by the county did not impose any duty upon the county to keep the same in repair; that as, by the purchase, the franchise of the company to take tolls was destroyed, and' the bridge became a free bridge, it became the. duty of the cities within the limits of which the same was situated to keep it in repair, the same as any other highway within their limits. Justice Cole, who delivered the opinion in that ease, says: “ The fact that the bridge was purchased by the county and became the property of the county would seem to carry with it as an incident the right to take care of it and control it. And if the county has the right to control it as the property of the county, from the nature of the case this control and management must be exclusive. The cities of Grand Rapids and Centralia have no right to interfere with it, or to give directions for repairing it. It would seem to be self-evident that the power and right to control the bridge, to make repairs upon it and maintain it, cannot reside at the same time in the county aud in the two cities. The county certainly owns the bridge, and if it were injured by a wrongdoer could maintain an action for the wrong; and, it being the property of the county, the duty of keeping it in a safe condition for the public use rests properly with the county at large.” This case disposes of the question of the liability of the county to beep the bridge itself in repair for the use of the public, and removes from the city any responsibility for any damages which may accrue to individuals on account of the want of repairs of the same. The liability for injuries resulting from the want of repairs to a bridge or other highway, under our statute, rests alone upon the municipality upon which the law casts the duty of making the repairs, and not upon the mere fact that the highway is within the bounds of the municipality. This, we think, is the doctrine laid down in the case of Houfe v. The Town of Fulton, 34 Wis., 608-617. In that case, the late Chief Justice Dixon says: “ It is, of course, a proposition generally correct, that a town is not liable for damages caused by an insufficiency, unless the place where the injury was received and the insufficiency exists, was a lawful public highway, which it was the duty of the town to keep in a state of reasonable safety and repair.”

In the case of Green v. The Town of Bridge Creek, 38 Wis., 449, 459, the court say: “ This bridge was built by volunteers, without any authority from the defendant, and at least ten rods distant from any public highway. It was erected for the accommodation of the persons who built it, though the public have likewise used it. But it is beyond the limits of any highway which the town is bound to repair, and it does not, like that in the Houfe case, connect portions of road on each side of the creek, which were highways of the town. The town has not adopted it nor recognized it in any manner as a bridge belonging to the town. Were the bridge erected within the limits of the highway by private individuals, there would be much reason for holding that the town was bound to adopt it as a part of the highway, and keep it in repair, or remove it from the highway altogether.”

Under these decisions, and especially under the decision in the case of The State v. Supervisors of Wood County, it is clear that if the injury complained of had been caused by want of repair of the bridge itself, there could be no recovery against the appellant city. And we are inclined to hold that for the purposes of this action the approaches to this bridge, which were made by the original company for the sole purpose of enabling the public to use the bridge when built, must be treated as -a part of the bridge itself, and that the city is not liable for any injury occasioned by the want of repair of such approaches, unless it be shown that such approaches were made in a public street of such city, or unless there is satisfactory evidence that the city has adopted such approach as one of the public streets of the city.

The evidence in this case clearly establishes the fact that what is now the approach to the west end of the bridge, east of Front street, covering the place where the injury was received, never was a public street in said city, either laid out, opened or kept in repair by the city, but that the same was opened to public use by the bridge company over private property, for which the company paid rent, and that it was appurtenant to the bridge, made for its convenient use by the public, and for which the company received compensation by the tolls it was authorized to demand for the use of its bridge. Had the company still owned the bridge, and were it in the receipt of tolls for the use of the same, it could not be claimed that the city of Centralia would be under any obligation to keep this approach, to the bridge in repair. The approach, made upon, private property, would be as much in the possession of the bridge company as the bridge itself; and it would be as much the duty of the company to keep it as it would be to keep the bridge in repair. As was said in the case of State v. Supervisors, there could be no doubt that the company in such case could recover against a wrongdoer for any injury done to such approach, for the reason that it was the proprietor and owner of the same, notwithstanding its use by the public.

Since the rights of the company were transferred to the county, the county has had a like possession and ownership of this approach to the west end of the bridge, has mainly kept the same in repair, and, as is admitted by the parties, has paid rent to the administrator of the deceased owner of the land over which the same passes, for the use of such land; and we have no doubt that it is as much the duty of the county to keep such approach in repair as it is to keep the bridge itself in repair. The case admits that this approach was never laid out or opened as a highway, either by the city or its predecessor, the town of Centralia, nor was it marked as a street upon the recorded plat of said town of Centralia; and that upon such plat there was no street designated as crossing the river east from the east line of Eront street. If, therefore, this approach has become a highway of the city, which it is bound to keep in repair, it must have become so by its adoption in some other way. We are quite clear that the evidence as to the repairs done upon this approach by the street commissioners of the city is not of such a character as would justify the court in holding, as a matter of law, that the city had adopted it as a part of the street, and assumed the care and control of the same; and that in any event, under the evidence, it was a question of fact for the determination of the jury, and not of law for the court.

There does not seem to be much force in the argument that, because the city had permitted the use of this sidewalk for several years, it should be estopped from alleging that it was not bound to keep the same in repair, and that it should be presumed the city had adopted it as its own. Whilst the original bridge company owned the bridge, and down to 1874, no presumption could arise against the city, for the reason that it would have been a trespasser if it had interfered with the use of the street or sidewalk which the company had constructed for its own use and benefit. And, under the decision of State v. Supervisors, the county having succeeded to all the rights of the bridge company, no presumption would arise against the city by mere acquiescence in the use of the street and sidewalk.

This case is clearly distinguished from the cases cited by the learned counsel for the respondents. The case of Johnson v. City of Milwaukee, 46 Wis., 568, and James v. City of Portage, 48 id., 677, and others, were all cases in which there was no dispute as to the fact that the locus vn quo was within a public street of the city or town, which such city or town was by law bound to keep in repair; and, such being the admitted fact, it was held no excuse for the city or town that such street was out of repair and unsafe by reason of the acts of some third person.. Rat in this case the contention is, whether the city is bound under any circumstances to keep the locus vn quo in repair as a street of the city; and upon that point there was not sufficient evidence offered on the part of the respondents to justify the court in saying, as a matter of law, that the city was bound to keep the locus in quo in repair as one of the streets of the city. Upon the evidence as it appears in the record, we would have been satisfied had the learned circuit judge directed a verdict for the defendant.

"We think the court erred in refusing to give the first and second instructions asked by the appellant, and also in giving the following instruction: “So far as you are to consider this case, I instruct you that if you find this was a public thoroughfare, used habitually by people in passing and repassing along that street, that it was in the keeping and charge of the city of Centraba, and that, being in the charge and keeping of the city, the city was bound to see that it was safe for persons in passing and repassing along the street at all hours — in darkness as well as sunshine, in the night as well as day:” This instruction left nothing for the jury to find except the sufficiency of the sidewalk and the quantum of damages. There was no dispute but that the place where the accident happened was “ a public thoroughfare, used habitually by the public in passing and repassing along that street.” And the court says, if it was such a thoroughfare, then it was in the charge and keeping of the city, and it was bound to see that it was in sufficient repair. In our view of the case, whether it was or was not a thoroughfare is not the real question in contention; but, admitting the fact that it was a thoroughfare, the real question for the court and jury was, whether the duty of keeping it in repair was upon the city of Centraba or upon "Wood county. As said above, we do not think the evidence in the case shows conclusively that the city of Centraba was bound to keep the locus in quo in repair, and for tliat reason the judgment must be reversed.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.