34 Wis. 608 | Wis. | 1874
Suppose an injury to happen from a defect in a way formally laid out and opened by the supervisors of the town, and which has been worked and prepared for travel, and annually repaired under their authority and directions, and used by the traveling public for a number of years. And suppose, furthermore, that the proceedings to lay out and open were formal only, that is, legal and valid only in appearance or as shown on their face, but illegal and void in substance, so that no highway existed by the act of laying out and opening where the supervisors and community in general believed it was; and suppose, also, that the land owner had done nothing to waive or relinquish his rights, and the public had acquired none by lapse of time or adverse user or otherwise: could the the town, when sued for the damage resulting from such injury,
The foregoing suppositions have been indulged and inquiries suggested, because they are believed to involve a very similar, if not the identical, principle upon which the town seeks to shun responsibility for the injury sustained in consequence of the insufficiency of the bridge in the case at bar. The bridge in question, or one at the same place which was afterwards
Another fact which should be stated is, that both the old bridge and the new were constantly used by the traveling public as a bridge belonging to the town, and connected with and constituting a part of its public highways. This use was with the knowledge and assent of the officers of the town, or at least without any dissent on their part, or notice or warning from them to travelers or any one else, that the bridge was not of the character and kind which its situation and appearance, and the use to which it was applied, indicated, and was not the property of the town. 0
The facts shown are quite sufficient to charge the town with responsibility for the insufficiency of the bridge, provided only that it was a lawful structure, or one which the supervisors bad authority of law to erect across Rock River at that place. Rock River is a navigable stream, so claimed and so conceded, which no person or corporation has the right to obstruct, so as materially to interfere with, disturb or diminish its capacity and usefulness for the purposes of navigation, without the consent of the legislature. The legislature never granted permission to build this bridge, and the answer of the town now is, that it was and is an unlawful structure, a public nuisance in fact, erected and maintained in defiance of law; and that since such is its character, no matter how the town or its officers may have conducted so as to draw the unwary traveler into mischief, still the town is not liable for any damage or injury which may have befallen him. Such an answer, whatever may be its legal tone
The facts are, that the town has always been permitted to maintain the bridge, the same as though original authority had been obtained from the legislature for building it. No indictment has ever been found, or information filed; or prosecution instituted against the town for erecting or maintaining it; and no complaint has ever been made of any obstruction to the navigation of the river, or that any inconvenience or detriment has been suffered by the public from that source. The facts appearing on the trial were, that for many years past little or no use has been made of the stream for the purposes of navigation or the transportation of logs, lumber or any of the products of the country. It has become, at and above the place of bridging and far below it, a strea"m of no significance whatever as navigable waters, — navigable in name only, but practically useless and unimportant. If it were a question of expediency, to be determined by the courts, whether such a stream ought or ought not to be bridged, there would be little difficulty in holding that the bridge was a lawful structure. Certainly the public inconvenience for want of a bridge many times exceeds that arising from its presence. - And there are authorities which seem ro sanction the rule that erections of the kind over streams of this nature are not unlawful, provided a convenient and suitable passage way up and down them be left for the public, and the navigation be not materially impeded or endangered. Williams v. Beardsley, 2 Carter (Ind.), 591; Lancey v. Clifford, 54 Maine, 487; Munson v. Hungerford, 6 Barb., 265; Moore v. Sanborne, 2 Mich., 519. But without going this length, but keeping within the- rule established by the Massachusetts decisions cited by counsel for the town, that
It is of course a proposition generally correct, that the town is not liable for damages caused by an insufficiency, unless the place where the injury was received and the insufficiency existed, was a lawful public highway, which it was the duty of the town to keep in a state of reasonable safety and repair. The liability of the town under the statute results from its omission to perform this duty ; and if there be no highway at the place of injury, there can be no obligation to maintain or keep it in repair as such, and consequently no liability for insufficiency. It may be true, therefore, we say, as a general poposition, that the liability of the town depends upon the legality as well as the insufficiency of the way. We find many cases in which legality, or the existence of the way de jure, has been the turning point or test of such liability. But such is not, in our judgment, the test in all cases. There may be eases where the de fació existence of the highway, one maintained by the town or its officers without lawful right, suffices to charge the town with liability. We are of opinion that this is such a case.
The early decisions in Massachusetts and Maine held that there would be no recovery against the town unless the way was lawful, and one which the town had the right and was under strict obligation of law to repair. This was held notwithstanding the town had taken possession of the way, and opened and improved it as one of the. public roads belonging to it. Todd v. Rowe, 2 Greenl., 55, and Estes v. Troy, 5 id., 368, are stz’ong cases of this description, and others doubtless may be found.
But the legislatures of those states, to obviate the injustice and to protect the traveler in such case, enacted that the re
But of late years, much more than formerly, the doctrine of estoppel, most wholesome and just in its operation when properly applied, has been extended to these municipal corporations, so as to bind and conclude them by their own acts and acquiescence and the acts and acquiescence of their officers, wherever an estoppel would exist in the case of natural persons. It is now well settled, that as to matters within the scope of their powers and the powers of their officers, such corporations may be estopped upon the same principles and under the same circumstances as natural persons. Kneeland v. Gilman, 24 Wis., 39, 42. The laying out, opening and improvement of roads, and the erection of bridges, also the expending of work and labor upon them, as well as the raising and appropriation of money for those purposes, are all matters within the scope of the general powers of the town and its officers. The same is true also of the adoption or ratification of roads already laid out and opened, and of bridges already erected and in use. When, therefore, a town or its officers ratify and adopt a bridge already built without its authority, or take possession of it as one of the public bridges of the town and a part of its highways, or by other acts clearly indicate such intent, and that it is to be so regarded by the public, the town may be estopped from denying that such is its true character, or from affirming that it had no lawful right to adopt or maintain it. And the same estoppel may arise where the town or its officers take unlawful possession of land as a highway, and expend labor upon and improve and hold it out to the
This principle is sustained by many modern decisions, and by none more clearly and emphatically than by the early decision of this court in Codner v. Bradford, 3 Chand., 291, where the court say: “ If the labor and taxes were expended upon a road not established in accordance with the law, it is the fault of the town, and it cannot be permitted to take advantage of its own wrong. It would be a harsh rule to require a person to search the records, and survey the traveled roads, to ascertain if all the minutiae of law had been complied with, and the public money and labor had been expended upon the exact route laid out and surveyed, though he may have paid taxes and worked for that very security that the law declares he shall have while traveling upon the public highways. In an action like the one under consideration, it is only requisite to prove that the road was one in fact, and so recognized by the town through its legally constituted agents, in order to make it liable in damages.”
Very similar was the case of Williams v. Cummington, 18 Pick., 312, in which the following observations occur in the opinion : “ It may well be doubted whether a town which, in making and repairing a highway, has by accident or design deviated from the true location, should be allowed to deny their Liability to maintain it as they have made it. Ii would be a dangerous imposition upon the public, and their conduct should be deemed an estoppel in pais. Long occupation and enjoyment, unexplained, will raise a presumption of a grant, not only of an easement, but of'the land itself; and not only of a grant, but of acts of legislation and matters of record.”
And in Mayor v. Sheffield, 4 Wallace, 189, the rule is broadly
And the cases of Bissell v. Railroad Co., 22 N. Y., 258, and Fort Plain Bridge Co. v. Smith, 30 id., 44, also bear upon and illustrate the same principle.
And there is authority for saying that mere acquiescence on the part of the town or its officers in the use of the bridge by the traveling public would estop the town, and make it responsible for the safety and sufficiency of the bridge. It is provided by statute in some states, that the town may post, notices, or otherwise give public information, that a bridge or way is not recognized by, and does not belong to the town, where such is the fact, and thus prevent liability for injuries happening from insufficiencies. It is not perceived why the. same thing might not be done, in proper cases, without the aid of a statute.
Upon the point that the damages are excessive, we make no comment, only to say that, considering the nature and extent of the injury, we cannot so pronounce them, or disturb the verdict on that ground.
On the whole case, we think the verdict and judgment were right, and that there was no error of which the defendant can complain.
By the Court.— The judgment is affirmed.