State ex rel. Neeves v. Wood Cnty.

• Decision Date: 08 November 1888
• Parties: STATE EX REL. NEEVES ET AL. v. WOOD COUNTY ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 629

40 N.W. 381

STATE EX REL. NEEVES ET AL.

v.WOOD COUNTY ET AL.

Supreme Court of Wisconsin.

November 8, 1888.

Application for mandamus. Demurrer to return to alternative writ.

It appears from the relation, in effect, that the cities of Grand Rapids and Centralia were, respectively, incorporated many years ago, and are situated upon opposite sides of the Wisconsin river,--a navigable stream,--in Wood county; that the relators are residents, citizens, tax-payers, and freeholders of one or the other of said cities; that one of said cities contains a population of 1,700, with property therein assessed at $200,000, and the other a population of 1,000, with property therein assessed at $135,000; that, in 1867, the Wood County Bridge Company, a corporation created and organized under chapter 178, P. & L. Laws 1865, constructed a toll-bridge across said river, between said cities, at a point described, and continued to run and operate the same as a toll-bridge until purchased by the county in 1873; that by section 6 of said chapter it was provided, in effect, that said county should, at any time after five years from September 1, 1867, have the right to purchase the same by paying to said company the value at which the same should then be appraised, in the manner provided for in said act; that in March, 1873, the county, pursuant to such provisions, exercised its right to purchase, and did purchase, said bridge from said company, and paid it therefor, including all the appurtenances, toll-house, and the soil or landing places upon which the ends of the bridge rested, and the right of way thereto, the sum of $10,500,--that being the value as fixed by such appraisers,--and that said bridge then became, and ever since has been and still remains, the property of the county, and is one of the principal highways of the county; that it then became, and ever since that time has remained, a free bridge, of which it has been and is the county's duty to keep up and maintain in a safe condition for public travel as a free bridge; that the county did so keep up and maintain said bridge in such safe condition until some time in 1875, when, after it became dilapidated and unsafe for public travel, it refused to further repair the same, but was compelled to do so by the court, (41 Wis. 28;) that thereupon the county repaired the bridge, and placed it in safe condition for public travel; that, in 1877, the county rebuilt said bridge anew, of wood, at a cost of about $8,000; that it purchased the approaches or right of way leading from the adjacent streets to the ends of the bridge, a distance of about 80 feet, to be used as a public highway in connection with the bridge; that April 11, 1888, the two westerly spans of said bridge and one pier were taken out and carried away and destroyed by an ice jam and high water, leaving only one pier, one span, and the two abutments remaining; that the total length of said bridge, exclusive of the approaches, was 525 feet, and the length of the remaining span about 175 feet; that said bridge is the only wagon bridge across that river between said cities, or within said county, or for a distance of 25 miles either way from said cities, and that there are no ferries within that distance, nor any fordable point even at a low stage of water; that the county is the only corporation or body authorized to bridge said river in said county; that said bridge is located at the foot of Grand rapids, in said river, which is subject to frequent floods and freshets; that transportation across the same between said cities by means of ferry or boats, during the greater portion of the year, is and will be extremely unsafe, hazardous, and dangerous to life and property; that the bridge is necessary for the business intercourse between the people of the respective cities, and to enable the people of each to reach the railroad depots on the respective sides of the river, and to carry the mail between said cities, and to and from said depots, and the county buildings, offices, and courts in said city of Grand Rapids; that there are 18,000 inhabitants in the county, of which only 3,000 are east of the river; that the cost of rebuilding said bridge with new stone piers and abutments and iron superstructure will not exceed $25,000, and that the cost of repairing the same, by using what is not destroyed, will not exceed $7,000; that the total assessed valuation of all taxable property in the county is $2,197,600; that the total indebtedness of the county does not exceed $30,000; that April 24, 1888, a meeting of the board of supervisors of said county was, at the request of a majority of the board, duly called for May 3, 1888, for the purpose of taking the necessary steps for rebuilding and repairing said bridge; that all the members of the board met accordingly, and organized; that thereupon said board, by resolution in writing passed and adopted by a vote of the majority thereof, resolved to forever close said bridge as a public highway, and for public travel; that the remains of said bridge be donated and given to such corporation or corporations as might rebuild the same, together with all the rights, privileges, and franchises thereunto appertaining and belonging to the county, and that all resolutions, ordinances, or orders conflicting therewith, or authorizing any expenditure of money in or about such bridge, were thereby, in form, repealed and rescinded; that the board, by a majority vote thereupon, refused to take any steps for the rebuilding of said bridge; that no petition was presented to said board signed by 30 resident freeholders of the county, nor by 15 freeholders from each of said cities, asking the closing or discontinuance of said bridge as a public highway, or otherwise. Wherefore the county was required forthwith to repair, construct, and place said bridge across said river in a safe condition for travel, or show cause to the contrary thereof. It appears from a return to the writ, among other things, in effect, that the portions of the bridge that remain cannot be used in building a new bridge, but must be removed, if any one is built in that place; that the defendant denies that said bridge was ever a public highway, or that the public necessities require the rebuilding of said bridge, or any bridge, between said cities, or that the county is the only corporation authorized to bridge the river within the county, or that there is any duty devolving upon the county to bridge the river; and alleges that said cities are authorized to bridge the river; that, if a new bridge were to be built across said river between said cities, it ought not to be built at the place designated in said writ, but at a point higher up the river, upon section 8, township 22 N., of range 6 E., where the river is free from ice gorges; that ice gorges are liable to form at the foot of the rapids where said bridge was built, and have frequently formed there, and have threatened and endangered said bridge in former years (when it was newer, stronger, and less damaged from repeated ice gorges) more seriously than at the time when it was swept away, April 11, 1888; that it is the belief of a majority of the board that no bridge built at that point can long withstand the ice gorges that form at the foot of said rapids; that the great majority of the people of the county have no interest in the maintenance of the bridge, and hence that the board refused to take any steps for rebuilding or repairing the bridge, and passed the resolution mentioned in the relation; that the defendant admits that no petition was presented to the said board, asking that said bridge be closed or...