Stoehr v. Town of Red Springs

• Decision Date: 03 April 1928
• Citation: 195 Wis. 399,219 N.W. 98
• Parties: STOEHR v. TOWN OF RED SPRINGS.
• Court: Wisconsin Supreme Court

195 Wis. 399

219 N.W. 98

STOEHR

v.TOWN OF RED SPRINGS.

Supreme Court of Wisconsin.

April 3, 1928.

Appeal from Circuit Court, Shawano County; E. V. Werner, Judge.

On rehearing. Original mandate (216 N. W. 487) vacated and set aside, and judgment affirmed.

See, also, 217 N. W. 655.--[By Editorial Staff.]

Winter & Winter, of Shawano, for appellant.

Dillett & Fischer, of Shawano, for respondent.

STEVENS, J.

A motion for rehearing was granted, and a careful study of the ever changing statutes under which our Wisconsin system of highways has been developed has led the court to the conclusion that it was in error in its former decision in this case.

[1] The maintenance of highways is a governmental function. Neither the county nor the town in which a highway is located is liable for damages resulting from the performance of a governmental function in the absence of some statutory enactment imposing such liability.

[2]Section 81.15 of the Statutes imposes liability for damage resulting from the insufficiency or want of repair of any road upon the town in which the road is located, unless such insufficiency or want of repair be upon a road which has been “adopted as a county road,” or upon a road which the county “is by law bound to keep in repair.” Under this statute, if the county is liable, the town is not. If the county is not liable, the town is.

[3] The former decision was rendered in the belief that the statutes still vested in the county board the power to make a road a county highway without taking the steps prescribed by statute which are essential to make such highway a part of the system of prospective state highways. A restudy of the changes made in our highway statutes at each succeeding session of the Legislature satisfies the court that it was in error in reaching that conclusion.

From the revision of the statutes in 1878 down to 1911, county boards were given plenary power, upon their own initiative, to adopt any main traveled highway as a county road. When roads were adopted as county highways, the statute imposed upon the county the duty of keeping such roads in good repair so long as they remained under the control of the county. Section 1308 of the Statutes of 1898.

[4] When the highway statutes were revised by chapter 337, Laws of 1911, section 1308 of the Statutes was repealed. In its place a statute was enacted which required counties to select and establish a system of prospective county highways. Section 1317m3, Statutes of 1911. Ever since the enactment of chapter 337, Laws of 1911, the statutes have required the consent of the state highway commission before any change proposed by a county board in either the system of prospective state highways or of prospective county highways became effective.

Here the county board attempted to change the location of a road which was a part of its prospective system of state highways, but failed to accomplish its purpose, because it did not...