Stoehr v. Town of Red Springs

216 N.W. 487, 195 Wis. 399, 1928 Wisc. LEXIS 43

• Court: Wisconsin Supreme Court
• Decided: April 3, 1928
• Status: Published

Opinions

The following opinion was filed December 6, 1927:

Stevens, J.

This appeal raises the single question whether it was the duty of the county or of the, appellant town to maintain the highway here in question.

The county board adopted a resolution which changed the location of county trunk A in Shawano county so that the portion of the road where the cow was injured was made a part of that county trunk highway. Sub. .(4) of sec. 83.01 of the Statutes provides that the county clerk shall file with the state highway commission a copy of the county road map “showing the county systems of prospective state highways. The county board may alter such systems with the consent of the state highway commission.”

There was no direct proof that the highway commission had -ever consented to this change in the location of county trunk A. The trial court found that the highway commission had not consented to such change and concluded that the road at the place of injury was still a town highway and that the town was liable to the plaintiff in damages.

The learned trial judge was in error in concluding that the county was not liable unless all statutory steps had been taken which are essential to make the highway in question a part of the system of prospective state highways.

Counties were given the power to establish county roads long before the present statute was passed providing for a system of state trunk highways and prospective state highways. Ever since the passage of ch. 46, Laws of 1872, counties have been liable for injuries sustained on roads that have been adopted as a part of a system of county highways. This provision was made a part of sec. 1339 of the Statutes by the revision of 1878, where it was provided that “if such damage shall happen by reason of the insufficiency or want of repairs of a bridge, sluiceway or road, which any county shall have adopted as a county road, and is by law bound to keep in repair, such county shall be liable therefor, and the claim for damages shall be against the county.” That provision has remained in the statutes without change ever since the revision of 1878. It is now a part of sec. 81.15 of the Statutes. - -

When the legislature passed the statutes creating the present system of state trunk highways it did not take from the counties the power which they then possessed to establish county highways, nor did it relieve counties from liability for damages caused by their negligence in the maintenance of county highways.

Under existing statutory provisions counties have the power to determine that roads within their boundaries shall be county highways without the approval of the highway commission. It is only when they desire to make these county highways a part of the system of prospective state highways that the consent of the highway commission is essential.

In the case at bar the county made the road in question a part of a county trunk highway. The county then took over the control and maintenance of the road. It patrolled the highway regularly and improved a portion of it with gravel at the expense of the county. The town had no control over the highway. The insufficiency or want of repair that caused the injury to the cow was caused by the failure of the county to properly maintain the highway. Under this state of facts, the county, not the town, was the governmental unit which is liable for the damages which are here in question.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.

On February 7, 1928, a motion by the respondent for a rehearing was granted. The following opinion was filed April 3, 1928: