Dodge v. Ashland County

88 Wis. 577 | Wis. | 1894

Winslow J.

We shall not consider the question, much discussed in the books, as to whether a county is.liable for the torts of its officers committed in the attempted discharge of their corporate duties. In our opinion we do not reach that question, because there is another ground upon which we'think it must be held that there, is no liability against the county in this case. That ground will be briefly stated. The proposed highway was attempted to be laid out under secs. 1300-1307, It. S. Although the statute refers to highways so laid out as “county roads,” examination of the statute reveals the fact that this is, in some sense at least, a misnomer. It is true the road so laid is laid out by the county authorities, but, after all, the question is not whether the highway is laid out by one set of officers or by another, or what the official character or title of such officers may be, but for whom are they acting. Ai’e they acting for the county or for the various towns through which the road runs? Secs. 1303 and 1304 seem to conclusively establish the fact that they are acting for the several towns through which the road is laid. All the damages assessed are to be paid by the towns, and whenever the total amount of damages charged to any town exceeds $1,500 the electors of that town have an absolute veto power upon the entire proceeding so far as that town is concerned. Further, it appears by sec. 1307 that such highways are to be opened and repaired by the respective towns, and the county board has power to open them only in case the town board neglects or refuses to do so, and apparently has neither the power to repair the same nor is it under any liability for neglect to do so. R. S. sec. 1308. See, also, R. S. sec. 1339, and Stilling v. Thorp, 54 Wis. 528. The conclusion is irresistible that the road becomes, when laid, to all intents and purposes the highway of the town through which it passes, precisely as if laid by the supervisors of the town. If this 'be so, it seems very clear that the county supervisors, in laying it, are not acting on behalf of the county, but on behalf of the towns. The fact that they are county officers •is not a controlling element in the matter. The legislature Inay undoubtedly authorize county officers to act for a town, and this it seems to us has been done here. Under this view of the law it is evident that no liability was established against the defendant county.

On the plaintiffs’ appeal it is clear from the evidence that the finding of the jury that only 100 cords of cordwood ■were cut and removed by the defendant MoQeehcm is contrary to the great weight of the evidence. The evidence was substantially uncontradicted that a much larger amount of cordwood had been cut. But as this evidence was a mere estimate, made after the wood had been largely removed; we do not feel that it would be just to order judgment, but let the parties present their proofs upon a new trial.

•. By the Gourt.— Judgment reversed on both appeals, and •action remanded for a new trial.