Bogie v. Town of Waupun , 6 L.R.A. 59 ( 1889 )

Lyon, J.

The statute under which this action was brought (sec.. 1339, R. S.) is as follow's: “If any damage shall happen to any person, his team, carriage, or other property, by reason of the insufficiency or want of repairs of any bridge, sluiceway, or road in any town, city, or village, the person sustaining such damage shall have a right to sue for and recover the same against any such town, city, or village.” Unquestionably, the word “road,” as here employed, means a public highway.; and the insufficiency or want of repair thereof, which is the foundation of an action under the statute, must be the proximate cause of the injury complained of. These propositions will not, we think, be controverted.

The insufficiency of the highway in question, caused by the obstruction thereof.by reason of snow-drifts, is not, and is not claimed to be, the proximate cause of the plaintiff’s injuries. Such cause was the presence of the hidden ditch across the track on which he was traveling in the adjoining field, and so it is alleged in the complaint. If, under the circumstances stated in the complaint, the town is liable for the damages caused by such insufficiency, the complaint states a cause of action, and the demurrer thereto should have been overruled. But if, on the other hand, the town is not so liable, the demurrer' was properly sustained. Hence the question of such liability is- the controlling one in the determination of this appeal. .

It is argued by the learned counsel for the plaintiff, with much force and ingenuity, that this temporary road or by-way, upon which the plaintiff was injured, was, at the time of such injury, pro hac vice a public highway, made so by the acts of the town officers and the exigencies of the occasion. If the supervisors of the town, or the overseer of highways, had authority to locate, open, and work such road, there would be great force in the argument; but, for reasons which will now be stated, we are of the opinion that they had no such authority. •

Sec. 1249, E. S., provides that “every overseer of highways shall, whenever any part of the public highways in his district is blocked up by snow-drifts so as to render the same impassable, call out, upon one day’s notice, the taxpayers of his district, and immediately put such part of said highways in passable order.” The section then provides for giving credit for such work upon the unpaid highway taxes assessed against the persons performing the same. The section, as originally enacted, contained, also, the following provision: “But whenever the overseer shall deem it impracticable to render such parts of such highways passable and keep them in such condition, it shall be lawful for him to open a track through any field or inclosure in his district for the temporary accommodation of travel, whenever the same may be done without material damage to the owner or owners of such' inclosure; and no person using such track shall be liable therefor' in any civil or criminal action.” The above section was amended by ch. 179, Laws of 1887, by adding a clause thereto requiring the overseer to make the highway passable for a certain width at the bottom of the track of said road. This amendment has no significance in this action. By ch. 454, Laws of 1887, it was enacted that “section 1249 of the Revised Statutes is hereby amended so as to read as follows.” Then follows the section as amended, which is substantially the section as contained in the Revised Statutes, with the exception that the clause which authorized the overseer, under the conditions therein specified, to open a track through any field or inclosure for the temporary accommodation of travel, is omitted from the section. Such omission'necessarily operates as a repeal of the omitted provision. This is not disputed. '

It seems very clear to our minds that the legislation of 1887 was intended to take from the overseer of highways' the right to opén a temporary track upon private lands, and to compel him at once to open highways to public travel which have become obstructed by snow; in other words, that the legislature thought the power vested in that officer and the duty imposed' upon him to open highways so obstructed was ample without vesting him with the extraordinary power of turning the public travel upon the lands of private owners without their consent, especially as no adequate means seem to have been provided for making them compensation for such use of their property. ;

Much stress was laid, in the argument, upon the aver-ments in the complaint that the overseer performed labor upon this temporary road with the knowledge and approval of the supervisors, and that the same was traveled continuously by such officers and the public. It is claimed that these facts furnish strong evidence of a claim of right bn the part of the public. In certain cases, and under certain circumstances, this may be true; but it is essential that such claim' is that the locus in quo is a public highway. In the present case it was not. The overseer worked the road, not as a public highway, but as a mere temporary passageway over private property, made necessary by the snowdrifts in the highway. This was patent to the plaintiff and all others. Uobody could be deceived or misled by it, and no one had any right to believe that by doing such work the overseer was asserting a right of way for the public upon the locus in quo. This fact distinguishes this case from thosé which give importance to the acts of the overseer or other officials of the town in doing work or traveling upon the temporary track.

Much reliance is placed upon the case of Houfe v. Fulton, 34 Wis. 608, as an authority that the town is liable in this • case. There the bridge on which the plaintiff was injured was erected over a meandered stream without authority of law. Public highways extended to the bridge at either end thereof, and were connected by the bridge. It had been in use twenty years or more as a public highway. The annual town meeting of the town in which it was situated, nearly or quite twenty years before the accident, had by resolution accepted it as town property, and appropriations to be expended upon it were made by several annual town meetings. ■ The proper town officers took charge of the bridge and expended town funds in its repair arid maintenance. In short, the town and its officers constantly treated and maintaihed the bridge for a series of years as though it had been lawfully erected across the stream and was part of a lawful public highway. It was held that the town was estopped to deny that it was a public highway. Manifestly, the case was properly decided. But the distinctions between, the facts of that and the present case are so radical and important that the rule there adopted cannot properly be held applicable here.

In view of the above facts, especially of the legislation on the subject, the labor performed by the overseer on the temporary track is of no greater significance than it would had it been performed by a private, citizen, and could not have deceived the plaintiff into the belief that the overseer was performing it officially on a public highway; for the plaintiff is chargeable with knowledge that the overseer had no authority to bind the town by such act. We find here no element or fact upon which an estoppel against the town can be predicated.

The learned counsel for the plaintiff has cited several cases elsewhere to the proposition that the town is liable for defects of such temporary track. Whatever may be the doctrine of those cases, the legislation in this state so

■ cleariy indicates that it was not intended to impose any such liability upon the town that we must hold that none exists.

By the Court.— The order sustaining the demurrer is affirmed.