Town of Jamestown v. Chi., B. & N. R. Co.

• Decision Date: 01 November 1887
• Court: Wisconsin Supreme Court
• Parties: TOWN OF JAMESTOWN v. CHICAGO, B. & N. R. CO.

69 Wis. 648

34 N.W. 728

TOWN OF JAMESTOWN

v.CHICAGO, B. & N. R. CO.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Grant county.

Demurrer to complaint in an action begun on January 19, 1886.Clark & Mills, for respondent.

Orr & Lowry and Cameron, Losey & Traer, for appellant.

COLE, C. J.

Though this is an appeal from an order refusing to strike from the files (and overruling the demurrer) the amended complaint, because the cause of action has been changed from one at law to one in equity, still no objection is now taken to the order on account of such change. The original complaint was doubtless based upon a legal action to recover damages for the destruction of a highway of the town; but there were two amended complaints subsequently served and filed, asking equitable relief. These complaints were excepted and demurred to on the ground that they did not state a cause of action; but no objection was taken that an unauthorized amendment had been made which changed the action from one at law to one in equity. Under the circumstances, the learned circuit court held that the objection to strike the amended complaint from the files for that reason had been waived, and at the same time overruled the demurrer. We think the court was right in the view it took of the matter; at all events, no objection is now taken to the order on account of the change in the cause of action. That point need not further be considered, and we pass to the questions raised by the demurrer.

The action is for a mandatory injunction to compel the defendant company to restore to its former state of usefulness a public highway which it has practically destroyed in making its railroad track. It is alleged, in substance, that there was a public highway, of great importance to the residents of the town, which extended along the bottom and bluffs of the Mississippi river on the east side, which had been used and worked by the town for many years, and which afforded the only convenient communication to market for those citizens of the town who resided on the bottom and adjacent bluffs of the river. It is alleged that the Winona, Alma & Northern Railway, the predecessor of the defendant company, began to trespass and destroy this highway in the year 1884, and that this destruction has been continued by the defendant company to the commencement of this suit; that the defendant in building its road has taken possession of many portions of the highway, and by excavation, digging, and piling dirt upon them, by grading its track, has rendered the highway wholly impassable and useless for travel; that there is not space enough in many places between the bluff and river for the railroad track and highway; and that it is impossible for the town to construct a new highway by the side of the railroad without great and unnecessary expense of at least $5,000, and without first destroying the railroad track. The relief asked is that the defendant be enjoined from further obstructing the highway, and that it be ordered to restore it to its former state, or to such condition that its usefulness will not be materially impaired as a highway.

The main objection to the complaint is that the town has no right to bring the action; that it has no such interest in the preservation and protection of the highways within its limits as will warrant it in invoking the relief sought. This question is a new one in this court, so far as we are advised; but we are inclined to sustain the action upon this ground: Towns in this state are responsible for the construction and repair of all highways within their limits. They are liable for damages to travelers occasioned by obstructions and defects, and they should have legal remedies commensurate in some degree to their liability. The statute gives to the supervisors of towns care of highways in their respective towns, and makes it their duty to see that they are kept in repair, and to cause to be removed all obstructions therefrom. Section 1223. It seems to be the policy of all legislation upon the subject that...