State ex rel. Neeves v. Supervisors of Wood County

41 Wis. 28 | Wis. | 1876

Cole, J.

The learned cpunsel on both sides, who argued this cause, desired a decision of the main question in it, namely, whether, on the facts stated in the relation and alternative writ, the county of Wood or the cities of Grand Rapids and Centraba were bound to keep in repair the bridge across the Wisconsin river betwden those two cities. Considering the importance of the question to the public, we have felt it our duty to pass upon it, though we are not entirely clear that the order refusing to quash the alternative writ is an ap-pealable one under our statute. However that may be, as the point was not raised nor discussed by counsel, we shall assume, for the purposes of this case, that the order is appealable; but we do not wish to be understood as expressing any opinion upon the question. The question as to the appealability of such an order will therefore remain open, to be determined whenever it may arise in future cases.

It is claimed on the part of the relators, that the duty of repairing and maintaining the bridge in question in a safe condition for public use is imposed upon the county of Wood. On the other hand, the board of supervisors contend that by the provisions of the general statute (ch. 19, E. S.), that duty is devolved upon the cities of Grand Eapids and Centraba, which are entrusted with the superintendence and repair of roads and bridges within their respective limits. Kittredge v. The City of Milwaukee, 26 Wis., 46.

By the general system which prevails in this state, the primary care of keeping highways and bridges in suitable repair is devolved upon the towns and cities. In respect to this there can be no controversy. But the inquiry is, whether the facts stated in the relation take this bridge out of the general rule. It is quite apparent that either the cities of Grand Eap-ids and Centraba or the county of Wood must be charged with the burden of the care and reparation of the bridge; as we fully agree with the counsel of the relators in the remark that a public bridge in this state with no person or body under obligation to keep it in a safe condition for public travel, would be an anomaly in the law, and cannot be tolerated.

It appears that the bridge in question was built in 1867, under the provisions of ch. 178, P. & L. Laws of 1865. By that act a corporation was created, known as the “Wood County Bridge Company,” which was authorized to build and maintain a bridge across the Wisconsin river at the point designated, and to demand and collect tolls from all persons passing over it. By the 6tb section it was provided, that at any time after five years from tbe completion of the bridge, the county had the right to purchase the same at an appraised value; and, upon payment to the company of the amount, within a year after the award, it was declared that “ the bridge shall become a free bridge.’1 The county acquired the bridge in 1873, and became the owner of it; and thereupon the bridge became a free bridge and a public highway, in accordance with the act, and open and free for travel and the transportation of merchandise, to all persons desiring to use the same. The county has, ever since the purchase, kept up and maintained the bridge and paid repairs and the expenses thereon, until about the time of the commencement of this proceeding, when the board refused longer to maintain or repair the same. And this application is to compel the county board to keep up and maintain the bridge in a safe condition for public use. It is not seriously questioned that a rrtim-darrms is the proper remedy to compel the board to do so, if it is chargeable with that duty.

The learned circuit judge, in the opinion filed overruling the motion to quash the alternative writ, observes that, upon the fact set forth in the relation and admitted to be true, it was plain that, by virtue of the l’eserved right and the action taken under it, the county .acquired the title to and became the owner of the bridge; that the county had the sole and exclusive control of it, subject to the right of the public to use it as a highway or public bridge. And the learned circuit judge held that it followed from this that the county was bound to keep the bridge in repair; that this duty resulted from its ownership and the public character of the bridge. It seems to us that this view of the matter is correct. 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, preserve 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 Eapids and Centraba 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 and in the two cities. The county certainly owns the bridge, and, if it were injured by a wrong-doer, 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. In reaching this conclusion, it is not necessary to invoke the rule of the common law which imposed upon the county the care and superintendence of the highways and public bridges, and made the county responsible for their sufficiency. This case may well rest upon its peculiar facts, and the obligation growing out of ownership. The county board, it seems, after the purchase, proceeded to repair it, and has not until recently claimed that the reparation of the bridge was committed to the cities of Grand Eapids and Centraba.

It is said that no duty to repair can be implied from the purchase, as the sole object of the purchase was to make the bridge free, and that it stands on the same basis and footing as any other public bridge which is to be repaired by the towns or cities in which it is situated. But as the county paid for the bridge and owns it, the duty of repairing rests with the county. The case of The People v. The Supervisors of Duchess County, 1 Hill, 50, seems to us quite in point on this question. Though there there was no purchase, but the act authorizing its construction by Drake and Bogardus declared that the bridge, when completed, should be' a pubbc bridge, and should be under the control and direction of the supervisors of the county, it was held that, the bridge being under the control and direction of the supervisors, it was to be repaired and maintained by the county at large. In the case of Hill v. The Board of Supervisors of Livingston County, 12 N. Y., 52, the bridge had been a toll bridge, but had become free under the charter. The legislature authorized the board of supervisors of the county to raise money by taxation to aid in reparation of bridges, and to apportion the tax among the towns of the county as might appear equitable. Under the statute, the board raised for the repair of the bridge $900 from the county at large, and $692 from the towns of Avon and Caledonia. The plaintiff was a taxpayer of the town of Avon, and brought this action to recover the amount of the illegal tax which he claimed he was compelled to pay under this apportionment. The majority of the court held that the tax in question was rightfully imposed by the board.

If, as we have indicated by our remarks, the bridge in question was one which the county was bound to keep in repair, the fact that the landing or approach at the west end was private property, cannot change or qualify the duty of the county. The case of Houfe v. The Town of Fulton, 34 Wis., 608, is a very clear authority upon that point. So long as the bridge is kept open for public travel, the board is charged with the duty of keeping it in suitable repair.

By the Court. — The order of the circuit court refusing to quash the alternative writ,'is affirmed.