105 Wis. 391 | Wis. | 1900
The following opinion was filed January 9, 1900:
This case is ruled by Dow v. Deissner, ante, p. 385, and cases therein cited. The ruling sought to be reviewed arises upon a demurrer ore tenus. No bill of exceptions was settled, and no exception has been preserved in the record according to established practice. This leaves us powerless to review such ruling.
By the Court.— The judgment of the circuit court is affirmed.
The following opinion was filed February 2, 1900:
The judgment in this case was affirmed upon the grounds stated in the case of Dow v. Deissner, ante, p. 385. A rehearing having been sought in that case, this court has-found it necessary to recede from the position there taken, as will be noted in the opinion filed on such application. To-avoid the necessity of a rehearing in this case, we have thought it advisable to examine the case on the merits. The complaint alleges a supposed cause of action based upon a contract between plaintiff and defendant made May 12,1883, which is set out at length. By the terms of this contract the defendant agreed to pay the plaintiff the sum of $15, and to build three certain roads described therein, and to “ keep above-specified roads in repair so far as they may be damaged from flooding from said Dells dam,” in considera
Two questions arise: First. Is the contract legal? Second. Does the complaint show that the town has sustained any damage, for the recovery of which this action will lie ?
1. The defendant insists that the contract in suit is one contemplated by sec. 1225, S. & B. Ann. Stats., and that none of the conditions precedent prescribed in the law are shown. That section, among other things, provides that, if so instructed at an annual town meeting, the supervisors or commissioners may let, by special contract or otherwise, any and all highways to be kept in repair for a term not exceeding-five years. A mere inspection of the contract set out in the complaint demonstrates that it is not such a one as this sec
^ 2. It will be observed that the complaint alleges that the roads have become out of repair by reason of flooding from the defendant’s dam, and that it will cost about $2,000 to restore the same. It is not alleged that the roads are impassable, or that the town has sustained any liability by reason thereof, or that it has made any expenditure of money in the way of making repairs. So far as the complaint ■shows, the roads have become out of repair, and have been suffered to remain so, without any effort on the part of the to wn to meet its statutory obligation. The question squarely presented is, Can the town maintain an action to recover the alleged cost of repairs, when it has sustained no actual liability for accidents, and has made no expenditure in the way of making the necessary repairs? The town has no proprietary interest in its roads. Its obligations with reference to them are statutory, and rest upon its duty to the public to keep them in a reasonably safe condition for travel. Its liability in that regard existed before the contract was made, and was not increased or diminished by reason thereof. If through the act of another they become
Tbe first class of cases is based upon tbe fact that tbe municipality bad paid a fixed sum, to recover which tbe action was brought. Tbe others rest upon tbe idea that tbe actual or threatened injury was of such a character that a restoration, or prevention of threatened injury, was tbe only remedy that would fully meet tbe requirements of tbe case. In none of tbe cases is it held or intimated that an action at law could be maintained to recover the money value of tbe damage done, where tbe town bad made no repairs or sustained no actual damage. Tbe putting of a highway in a safe condition for use is a matter resting in tbe reasonable discretion of tbe town authorities. Until that discretion has been exercised, no one can say, to a reasonable certainty, what tbe expense of the work will be. When tbe repairs have been made, an absolute standard for a recovery has been fixed, and reimbúrsement for tbe actual outlay is the proper measure of damages. In a case like this, no expenditure for repairs having been made, tbe judgment of tbe jury as to tbe cost is sought to be substituted for that of the town officials. If tbe town held tbe roads in absolute right, there Would be no great difficulty, but tbe town sustains no such relation thereto, the title to tbe roads belonging to the adjoining owners. The public has tbe right of travel and the town is charged with tbe duty of maintenance, with no right of property. Its primary duty is to keep tbe road in
Another question pressed by defendant is that no notice of the injury to the roads was ever given, and no request to repair was ever made. Where, as may be inferred in this case, the injury to the roads by the action of the water Avould be gradual, the necessity of notice, with a demand to repair, is one of some significance. The view we have taken renders it unnecessary to determine whether such action on the part of the town is a condition precedent to recovery or not. In the most of the cases where recovery for expenditures has been permitted, both notice and demand have been set out and proven. The question approaches so near debatable ground that it would be the part of wisdom to have •it eliminated in future proceedings.
By the Court.— The judgment of the circuit court is affirmed.