Goodhue v. Town of Beloit, 21 Wis. 636

Goodhue v. Town of Beloit

21 Wis. 636 | Wis. | 1867

Downer, J.

1. It is contended that the resolution set out in the complaint was to donate a thousand dollars to the plaintiffs, and that the town had no authority to make a donation. “ Donate ” generally means giving gratuitously, or without any consideration; but in this instance the language of the resolution shows it was giving, or agreeing to give, for a consideration, and so both the electors and plaintiffs must have understood it.

2. It is, however, urged, that if it was intended to make a contract with the plaintiffs, still this action cannot be maintained, because the building of the bridge was a mere private enterprise. This position is untenable ; for the plaintiffs, by the resolution, are entitled to the thousand dollars only on the condition that they, within the prescribed time, erected a substantial bridge for the public use, connecting South Bridge Street on the east side of the river with State Street on the west side.

3. Again, it is contended that the town had no authority to make the contract. Chap. 12, sec. 2, R. S. 1849, provides that *643the qualified electors of each town shall have power to raise money for the repair and building of roads and bridges; and section one gives the town power to make all contracts necessary or convenient for the exercise of its corporate powers. It clearly had power to make contracts for building bridges. But Rock River is one of the streams returned navigable by the United States surveyors; and, by chapter 34, R. S. 1849, is declared navigable to such extent that no dam or bridge may be made in or over the same without the assent of the legislature. Authority was given by the legislature, by chap. 263, Pr. Laws of 1856, to the plaintiffs, their heirs or assigns, to construct and maintain the bridge; and if the allegations of the complaint are true, the bridge and right to construct and maintain it have been and were intended to be by the plaintiffs transferred to and vested in the town, or in the new corporation embracing the territory within which the bridge is. It is difficult to see how a bridge which is not a toll bridge is to be erected for the public use, without being dedicated to the public. We are inclined to construe the resolution as requiring a dedication to the public; and if it did, as soon as the bridge was constructed and opened for public use under the resolution, it was dedicated to the public, and the town or city acquired thereby the right to publicly use, keep and maintain the bridge. A good cause of action is set out in the complaint against the town.

4. Ought the demurrer of the city to the complaint to be sustained ? The complaint is framed as if both town and city were jointly liable for the whole debt. Section 12, chap. 10 of the city charter (Pr. Laws of 1856, page 990), provides that “ the town business of the present town of Beloit, up to the time of the commencement of the city government under this act, shall be settled by the town as constituted by this act, and the amount of funds remaining or debts due, as the case may be, proportioned between the said town and city of Beloit according to f¿he amount of taxable property belonging to each, *644as taken from the last assessment roll; such settlement to be made with the city council by the supervisors of said town.” It is obvious that the town is by its contract liable for the whole debt, and we fail to perceive in this provision any thing to the effect that the city shall be also liable for the whole; and we are inclined to the opinion that it was the intention that the town should settle the debts against it, and collect from the city the proportion it ought to pay. Whether, on principles of equity, the plaintiffs, on a complaint properly framed, might not have had the court determine the amount each ought in equity, as between themselves, to pay, and have a judgment rendered against each for its proportion, is unnecessary for us now to determine, as that question is not properly before us. It is clear that the plaintiffs are not entitled to a judgment for the whole amount against both city and town.

By the. Court. — So much of the order of the circuit court as overrules the demurrer of the town, is affirmed ; and that part overruling the demurrer of the city, is reversed.