Town of Waupun v. Town of Chester

• Decision Date: 06 November 1884
• Citation: 21 N.W. 251,61 Wis. 401
• Parties: TOWN OF WAUPUN v. TOWN OF CHESTER.
• Court: Wisconsin Supreme Court

61 Wis. 401

21 N.W. 251

TOWN OF WAUPUN

v.TOWN OF CHESTER.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Dodge county.Eli & C. E. Hooker and T. W. Spence, for appellant.

J. B. Hays and H. W. Lander, for respondent.

ORTON, J.

In October, 1859, the town of Waupun, in the county of Fond du Lac, and the town of Chester, in the county of Dodge, by the joint action of their boards of supervisors, attempted to lay out what was called in the petitions and orders a “joint highway” on or near the line between said towns. To that end their proceedings seem to have been substantially in compliance with the statute relating to the laying out of town-line highways, and no particular objection is made thereto, except as to the name given to it in the records; but this highway became long since a legal highway by user and the statute of limitations. Rev. St. § 1924. Regarding substance, rather than mere name, this highway was no doubt intended to be and was, substantially, a highway between the two towns, according to sections 67, 68, and 69 of chapter 19, Revised Statutes of 1858.

The highway was in many places widely variant from the town line, but must be presumed to have been laid out “as near thereto as the situation of the ground” (admitted,) and that the variation “was deemed necessary” according to the above statute. On this highway a bridge across the Rock river was necessary to be built and maintained, and if the highway was such on the town line, as we hold it was, or a town-line highway, then it follows that such bridge was a town-line bridge, to be built and maintained jointly by the towns, the same as the highway. The language in section 1320 of the Revised Statutes of 1878, “or aiding and maintaining a bridge across such stream,” and the section in which it occurs, were not then in force as statutory law. The provisions of said section, and subsequent sections relating to towns, cities, and villages bordering upon navigable or meandered streams, and building and maintaining bridges over the same, were first enacted as chapter 229 of the Laws of 1874. But the main body of that chapter relates to providing means by taxation and issuing bonds for the building and maintaining or aiding therein of such bridges. It does not in terms authorize towns to build and maintain jointly such bridges, or aid therein, but only for raising the necessary means for such purpose, implying that such right and duty existed without the statute. The statute only recognizes such right and duty, and provides the means for the same. A bridge across Rock river, a navigable or meandered stream on this highway, was necessary to the use of the highway, and a part of it, and it was as much the duty of the two towns to build and maintain it as any part of the highway. Such a bridge, however, involved an extraordinary expenditure of money. It could not be apportioned in sections like other parts of the highway. The right to build and maintain it by the towns ex necessitate being conceded, the right to apportion between the towns the expenses thereof is a like necessity, for in no other way could it be jointly built and maintained by the two towns. The towns were authorized to determine what part of said highway should be made and kept in repair by each town, by section 68 of chapter 19 of the Revised Statutes of 1858.

It follows that they were also authorized to determine what part of such bridge should be made and kept in repair by each town. Such part of the bridge could not be determined in any other way than by an apportionment of the expense incurred in building and maintaining it. At the same time when the highway was laid out, the supervisors of the two towns determined, by an order or agreement, the part of the highway to be made and kept in repair by each town, and apportioned the expense of building and repairing the bridge between the two towns. Said order or agreement was as follows: “At a meeting of the supervisors of the towns of Chester, in Dodge county, and Waupun, in Fond du Lac county, it was agreed by the said supervisors that the expense of building and repairing the bridge known as the countyline bridge be apportioned to each of the said towns as follows: to the town of Waupun three-fifths, and the town of Chester two-fifths, of said expense; and the road laid out bearing even date herewith be divided as follows to keep in repair: the town of Waupun to take the west part to the second angle-post, where it angles from the road known as the Clark road; the town of Chester the balance after it angles from said road.”

It is conceded that the bridge is in that section of the highway assigned to the town of Waupun to keep in repair. In respect to this agreement, it is contended by the learned connsel of the respondent that it is, at least, ambiguous, and should be construed that it is the duty of the town of Waupun to keep the bridge in repair, because it is a part of the highway assigned to that town. The agreement is remarkably clear and explicit, and leaves nothing in the least doubt as to its meaning. It could scarcely be better drawn to express the full and complete determination of the supervisors of the division of the highway, and of the apportionment of the expense of building and repairing the bridge. There is no possible chance of any other construction.

There had been a bridge at...