Wolfgram v. Town of Schoepke

SiebeckeR, J.

It is insisted in argument that the appellant town is not liable as alleged in the complaint, because ch. 244, Laws of 1899, changed the territory of the town of Gagen. It appears by the pleading that the highway in question is upon the line between the appellant town and the town of Gagen. An oider was made designating the parts of this-highway to be made 'and kept in repair by each of the two adjoining towns. This, order was acquiesced in and acted upon by the towns up to the time of the enactment of ch. 244, Laws of 1899. By this act the boundaries of the town of Gagen were changed and its territory increased. The injury complained of is alleged to have occurred on May 5th following, being on the ninth day after the enactment of ch. 244, Laws of 1899. There is no dispute in the pleadings but that-the defect complained of is due to an alleged insufficiency of the highway as constructed by appellant some time prior to the change of territory of the town of Gagen by this legislative act. Under this state of facts, the liability for this insufficiency mnst be deemed unchanged by the legislation specified. The insufficiency is alleged to be wholly due to the omission of duty of the authorities of the appellant town, imposed upon it under the order of the town boards, which assigned to it this part of the highway to construct and keep in a proper state of repair. By this order, made under sec. 1273, Stats. 1898, it follows that “each such town shall have all the rights and be subject to all the liabilities in relation to the part of such highway to be made or repaired by such town as if wholly located in such town.”

Appellant’s contention that the legislation which went into effect April 26, 1899, abrogated this order of apportionment, and absolved it from the liability charged in the complaint, cannot be approved. To give this legislation such construction would relieve appellant from the consequences of its negligence, incurred prior to the passage of the act. The provision of the statute involved is:

“That part of the order fixing their liabilities shall be deemed vacated, and a majority of the supervisors of each of such towns shall, before the time for making the next subsequent tax roll, meet together and make a new order apportioning their liabilities on account of such highway.”

It is obvious that the time for a reapportionment of this highway by the supervisors of such towns had not yet arrived when the accident occurred. To construe the statute as contended for would, in effect, cast the burden of appellant’s default, incurred prior to the time of such legislation, upon the town of Gagen. Eo such result can be said to have been reasonably contemplated by the statute. It fails, in terms and by implication, to impose such a liability on the town of Gagen; nor does it seem to contemplate a release of the appellant from the consequences of its default in performing a legal duty. The complaint seems definite in charging the insufficiency to be due to defective construction of the highway by the town of Schoeplce prior to April 26, 1899.

By the Oourt. — The order of the circuit court is affirmed.