Uecker v. Town of Clyman

Wisconsin Supreme Court

Uecker v. Town of Clyman

118 N.W. 247, 137 Wis. 38, 1908 Wisc. LEXIS 285

CourtWisconsin Supreme Court

DecidedNovember 10, 1908

StatusPublished

Cited by3 cases

This text of 118 N.W. 247 (Uecker v. Town of Clyman) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Uecker v. Town of Clyman, 118 N.W. 247, 137 Wis. 38, 1908 Wisc. LEXIS 285 (Wis. 1908).

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Opinion

BARkes, J.

ISTo right of action existed at common law against municipalities for injuries sustained by reason of a defective highway, and the only provision of our statutes creating a liability, out of which a cause of action might arise on account of a defect in a highway, is sec. 1339, Stats. (1898). Stilling v. Thorp, 54 Wis. 528, 11 N. W. 906; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553; Morrison v. Eau Glaire, 115 Wis. 538, 92 N. W. 280.

Under sec. 1339, Stats. (1898), as amended by ch. 305, Jjaws of 1899, no action is maintainable on account of injuries sustained by reason of an. accumulation of ice and snow upon any highway, unless the accumulation complained of continued for three weeks. The action before us is brought to recover damages for injuries sustained by reason of an accumulation of snow on a highway. The complaint fails to allege that the accumulation had existed for three weeks prior to the date of the injury for which action is brought; hence no cause of action is stated. Sec. 1249, Stats. (1898), gives no right of action for injuries sustained [40]*40by reason of a snow blockade in a highway. A highway may be out. of repair by reason of its being blockaded with ■snow, and the town officers may be negligent in failing to remove the blockade as provided in see. 1249, but snch negligence is not actionable nnless it is made so by sec. 1339. Instead of giving a right of action on account of conditions such as are set forth in the complaint, that section provides expressly that no right of action shall exist on account thereof.

While it may be that the legislature had in mind a different class of cases, than the one now before us when it adopted the amendment referred to, yet the defect alleged comes-fairly within the language of that amendment, and, that being so, this court would hardly be warranted in indulging in speculation as to what the legislative intent was. McCabe v. Hammond, 34 Wis. 590, relied upon by appellant, is in entire harmony with what is here decided. There, as in Vass v. Waukesha, 90 Wis. 337, 63 N. W. 280, the defect relied upon was the failure to remove a snow blockade. The light of action, however, in these cases was wholly dependent on sec. 1339.

By the Court. — 'The order appealed from was correct and must be affirmed.

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BARkes, J.

ISTo right of action existed at common law against municipalities for injuries sustained by reason of a defective highway, and the only provision of our statutes creating a liability, out of which a cause of action might arise on account of a defect in a highway, is sec. 1339, Stats. (1898). Stilling v. Thorp, 54 Wis. 528, 11 N. W. 906; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553; Morrison v. Eau Glaire, 115 Wis. 538, 92 N. W. 280.

Under sec. 1339, Stats. (1898), as amended by ch. 305, Jjaws of 1899, no action is maintainable on account of injuries sustained by reason of an. accumulation of ice and snow upon any highway, unless the accumulation complained of continued for three weeks. The action before us is brought to recover damages for injuries sustained by reason of an accumulation of snow on a highway. The complaint fails to allege that the accumulation had existed for three weeks prior to the date of the injury for which action is brought; hence no cause of action is stated. Sec. 1249, Stats. (1898), gives no right of action for injuries sustained [40]*40by reason of a snow blockade in a highway. A highway may be out. of repair by reason of its being blockaded with ■snow, and the town officers may be negligent in failing to remove the blockade as provided in see. 1249, but snch negligence is not actionable nnless it is made so by sec. 1339. Instead of giving a right of action on account of conditions such as are set forth in the complaint, that section provides expressly that no right of action shall exist on account thereof.

While it may be that the legislature had in mind a different class of cases, than the one now before us when it adopted the amendment referred to, yet the defect alleged comes-fairly within the language of that amendment, and, that being so, this court would hardly be warranted in indulging in speculation as to what the legislative intent was. McCabe v. Hammond, 34 Wis. 590, relied upon by appellant, is in entire harmony with what is here decided. There, as in Vass v. Waukesha, 90 Wis. 337, 63 N. W. 280, the defect relied upon was the failure to remove a snow blockade. The light of action, however, in these cases was wholly dependent on sec. 1339.

By the Court. — 'The order appealed from was correct and must be affirmed.

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118 N.W. 247, 137 Wis. 38, 1908 Wisc. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/uecker-v-town-of-clyman-wis-1908.

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