President & Trustees of the Village of West Bend v. Mann

1. Assuming that the record of laying out the highway in question by the commissioners was irregular, so as not to show a legally laid out highway in . October; 1846, yet it appears from the evidence that it was opened, worked, and traveled prior to the digging of the raceway. This being so, the subsequent digging of the raceway across the highway, and the bridging of the same at the place of such crossing by Mr. Wolcott, who owned the land at the time, was a direct recognition of and acquiescence in the existence and legality of such highway. Such recognition and acquiescence were continued by the grantees of Wolcott in the subsequent repairing and maintenance of the bridge by them, until after all irregularities in laying out the highway had been set at rest by the statute of limitations. Sec. 80, ch. 16, R. S. 1849 (sec. 85, oh. 19, R. S. 1858; sec. 1294. R. S.). Under this statute the highway in question became established beyond all controversy as a public highway by user prior to 1860, and the owners of the raceway, during all the time from 1846 to 1879, recognized and acquiesced in its existence as such highway. Assuming that the defendants, as owners of the raceway, would have been in duty *72bound to maintain the bridge and keep it in repair, had the road been legally laid out in October, 1846, which seems to be conceded, then we are clearly of the opinion that the defendants are in no position to escape such liability merely on the ground that some remote grantor of the premises might, had he chosen to do so, have legally obstructed the highway by reason of some irregularity in the laying out of the same. We must, therefore, under the facts here presented, hold the defendants to the same obligations they would have been subjected to had the proceedings in laying out the highway been in all respects regular.

2. In New York it has been distinctly held that where the owner of land over which a public highway passes digs a raceway across the road to conduct water to his mill, and builds a bridge over the raceway, and an injury is sustained by any one in consequence of the bridge being out of repair, such owner is liable in damages to the party aggrieved. Dygert v. Schenck, 23 Wend., 446; Heacock v. Sherman, 14 Wend., 58; Creed v. Hartmann, 29 N. Y., 595; Congreve v. Smith, 18 N. Y., 79. A similar rule prevails in Massachusetts. Perley v. Chandler, 6 Mass., 454; Inhabitants of Woburn v. Henshaw, 101 Mass., 198; Lowell v. Proprietors, 104 Mass., 21. The leading cases cited from these two states were followed in Pennsylvania. Woodring v. Forks Tp., 28 Pa. St., 361; Phœnixville v. Phœnix Iron Co., 45 Pa. St., 135; Hays v. Gallager, 72 Pa. St., 136. The rule in other states thus indicated must be followed here. The same rule has been applied to railroad corporations in this state by virtue of the duty imposed in their charters. Duffy v. C. & N. W. R'y Co., 32 Wis., 269; Roberts v. C. & N. W. R'y Co., 35 Wis., 679. A similar rule has been recognised in England. King v. Kent, 13 East, 220; King v. Lindsey, 14 East, 317.

3. Does such liability extend to a subsequent grantee? In Woodring v. Forks Tp., supra, the court observed thta *73“ as he (the owner) has no right to injure the public easement, he is bound, in order to preserve that right, not only to construct bridges over the ditches where they cross highways, but also to keep them in repair. The duty of keeping such bridges in repair is as imperative as the original obligation to construct them. He could not be permitted to cut the ditch without erecting the bridge. He is bound to keep the bridge in repair, because he erected it for his own benefit. ... It follows from these principles that a subsequent owner of the land, who continues a watercourse across a highway for the use of his mill, and thus renders a continuance of the bridge necessary, is liable for the repairs of the bridge.” See, also, Inhabitants v. Henshaw, supra, and Comm. v. Fisher, 6 Met., 433. This liability is based upon the theory that the original interference, for private benefit, with such public highway, without restoring the same to a safe and proper condition for public travel by the building of the bridge, would have been a public nuisance, and hence to allow the bridge to become dilapidated or out of repair, so as to become dangerous to public travel by reason of the raceway, is to restore or reproduce the nuisance. It is like the maintenance of a nuisance by persons acquiring title to the land upon which it exists after the nuisance has been created. Cobb v. Smith, 38 Wis., 21. Such grantee is certainly liable for continuing such nuisance after notice to repair it. Slight v. Gutzlaff, 35 Wis., 675.

4. But the mere fact that the defendants would have been liable to travelers for any injury to them by reason of any defect in the bridge in question, does not take away the duties and liabilities of the plaintiff, which succeeded to the rights, duties, and liabilities of the original town. In Houfe v. Town of Fulton, 34 Wis., 608, the defective bridge had been constructed by a private party before it was adopted by the-town by public user, but the town was nevertheless held liable. To the same effect is Requa v. Rochester, 45 N. Y., 129.

*745. Such being the duties and liabilities of the respective parties, we must hold that the defendants, being primarily liable to maintain and keep in good repair the bridge in question, so long as they continue their raceway beneath the same, and having neglected and refused to so repair and maintain the same after being duly notified, the plaintiffs had the right to restore the bridge to a safe condition; and, having done so, the defendants are justly liable to them for the amount of money so expended by the plaintiffs for that purpose. Such recovery was expressly sanctioned in Penn. R. R. Co. v. Duquesne, 46 Pa. St., 224, and Town of Centerville v. Woods, 57 Ind., 192.

By the Court.— The judgment of the circuit court is affirmed.