Uecker v. Town of Clyman
| Decision Date | 10 November 1908 |
| Citation | 137 Wis. 38,118 N.W. 247 |
| Parties | UECKER v. TOWN OF CLYMAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dodge County; James J. Dick, Judge.
Action by Robert Uecker against the town of Clyman. Judgment for defendant, and plaintiff appeals. Affirmed.
This action is brought to recover damages alleged to have been sustained by reason of the plaintiff's horses having been injured on a defective highway. The defect complained of was that the defendant town had negligently permitted a certain highway to be blocked with an accumulation of snow for a period of two weeks or more, in violation of the provisions of section 1249, St. 1898. A general demurrer was interposed to the complaint as not stating cause of action, which demurrer was sustained by the court, and this appeal is taken from the order sustaining the same.J. E. Malone, for appellant.
Kading & Kading, for respondent.
No right of action existed at common law against municipalities by reason of a defective highway, and the only provision of our statutes creating a liability, out of which a cause of action might arise on account of a defect in a highway, is section 1339, St. 1898. Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. 906, 41 Am. Rep. 60;Daniels v. Racine, 98 Wis. 649, 74 N. W. 553;Morrison v Eau Claire, 115 Wis. 538, 92 N. W. 280, 95 Am. St. Rep. 955.
Under section 1339, St. 1898, as amended by chapter 305, p. 535, Laws of 1899, no action is maintainable on account of injuries sustained by reason of an accumulation of ice and snow upon any highway, unless the accumulation complained of continued for three weeks. The action before us is brought to recover damages for injuries sustained by reason of an accumulation of snow on a highway. The complaint fails to allege that the accumulation had existed for three weeks prior to the date of the injury for which action is brought; hence no cause of action is stated. Section 1249, St. 1898, gives no right of action for injuries sustained by reason of a snow blockade in a highway. A highway may be out of repair by reason of its being blockaded with snow, and the town officers may be negligent in failing to remove the blockade as provided in section 1249; but such negligence is not actionable unless it is made so by section 1339. Instead of giving a right of action on account of conditions such as are set forth in the complaint, that section provides expressly that no right of action shall exist on...
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