Wiesenberg v. Town of Winneconne. Wiesenberg
| Decision Date | 30 January 1883 |
| Citation | 56 Wis. 667,14 N.W. 871 |
| Parties | WIESENBERG, ADM'X, ETC., v. TOWN OF WINNECONNE. WIESENBERG, ADM'X, ETC., v. VILLAGE OF WINNECONNE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Winnebago county.Weisbrod & Harshaw and Finch & Barber, for Maria Wiesenberg, Adm'x, etc.
Charles W. Felker, for the President and Trustees of the Town of Winneconne.
These are two appeals in the same case, in the first of which the demurrer to the complaint was sustained, and in the second it was overruled. The complaint substantially charges that the deceased came to his death while navigating the Wolf river, in this state, with vessel called the North Star of which he was part owner, by reason of the acts of malfeasance and misfeasance of the defendants in placing a bridge across said Wolf river, a navigable stream within said town and village, which obstructed the navigation thereof unless a certain draw therein had been opened, and that by the negligence of the officers, agents, and employes of said defendants such draw was not opened. In short, the complaint charges that the defendants obstructed said river and neglected to remove such obstruction, by reason whereof the deceased, while navigating the same, was killed. This would appear to be a straight common-law action, as well as warranted by section 1598, Rev. St.
The defendant town became responsible for this obstruction by the purchase of the bridge, by virtue of chapter 216 of the P. & L. Laws of 1859, which required the town to keep such bridge in repair “and attended.” The only right which either the town or village had to maintain this bridge by the law, or could have, was conditional that a draw should be constructed in the same and opened when the river at this point should be required for the navigation of boats and vessels, and the town clearly assumed the duty to so attend and manage such draw. When this duty was neglected, then the bridge became and was a complete obstruction to the navigation of the river, and the town was responsible therefor, and for all special damage occasioned thereby. The complaint alleges that the town did maintain and control this bridge when the accident occurred. It is not claimed that this special power, right, and duty imposed upon this town by the statute to maintain and attend this bridge were ultra vires, and the state clearly had the right to grant and the town had the right to assume such power, right, and duty; and, this being so, the town is liable for neglect of such special duty, as any corporation or individual would be under the same circumstances. Dillon, Mun. Corp. § 763.
This view of the case, as to the town, would seem to be sufficient to establish its liability for any special injury or damage to the plaintiff occasioned by its direct act in obstructing the navigation...
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