(dissenting). In addition to the aver-ments recited in the statement of the case, the plaintiff alleged that the defendant “had not supplied or put in use any guards or warnings at the said approach to said bridge, but had left the approach from said Grand avenue to the bridge above described unguarded, unsafe and dangerous for pedestrians who desired to cross,” and that on October 15, 1905, he served upon the city clerk a notice of the time, place and nature of his injury. At the argument plaintiff’s counsel admitted that, inasmuch as the notice was not served within the time prescribed in the statute, no cause of action within section 1339, Rev. St. Wis., was stated in the complaint. Did the Circuit Court err in holding that, by the law of Wisconsin, no liability independent of the statute was shown?
The states are divided into two groups with antipodal views of the nature of the duty and resulting- liability of a city in respect to the care of highways and bridges within its limits. The “general group” holds that the highways and bridges are the city’s, and that the city is liable for negligence the same as a private corporation. This conclusion is sometimes based on the ground that the state has given the control to the city for its private advantage in “improving the territory within its limits” and in “adapting the territory to the pur*654poses of business and residence”; sometimes on the ground that the city, being a “voluntary” corporation as distinguished from the “involuntary” county and township corporations, and having sought charter advantages, will be held to have agreed to respond for negligence towards travelers, though the “involuntary” corporations are exempt., The theory of the “New England group,” in holding that the city need not respond to travelers for the negligence of its highway and bridge officers in the absence of a statute expressly creating liability, is that all the highways and bridges are the state’s; that the city, like the county, like the town (the township of the other group), is merely an agency of the state in performing the governmental service of caring for the public ways; that, though the city or county or town highway or bridge officers are servants of the city or county or town, the superior need not respond because the superior is an instrumentality of the state in this respect and no more liable to suit without leave thán the state itself. This contrariety of view may have its roots in the differences between the Virginia “county” and the New England “town” governments in the old colonial days.
When a traveler asserts a city’s liability for a negligent act or omission of a highway or bridge officer, the answer must be made according to the .local law. Under no circumstances can the question become one of general law. Even in the absence of a statutory provision concerning the extent and conditions of liability, the question is bound to turn upon the construction of the local statutes which impose highway and bridge duties upon the cities. “It is purely local in its significance and extent. It involves simply a consideration of the powers and liabilities granted and imposed by legislative action' upon cities within the state.” Detroit v. Osborne, 135 U. S. 492, 498, 10 Sup. Ct. 1012, 34 L. Ed. 260.
Wisconsin transplanted the Massachusetts statutory scheme. Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. Chapter 16, Rev. St. Wis: 1849; detailed, the system of “Highways and Bridges.” Upon municipalities, towns (townships), counties, villages and cities, the duty was laid alike as creatures of the state. For failure of duty to keep the highways and bridges open and safe for travel, section 103 of the chapter created an express liability. Section 109 required that “The provisions of this chapter relating to highways and bridges shall be construed to extend to, all parts of the state, except where special provisions, inconsistent therewith, have been or shall be made by' law in relation to particular towns, counties, cities or villages.” The system continues in force. Rev. St. Wis. 1898, c. 52, §§ 1339, 1347.
This general scheme of duty and liability, cast by the state upon all her municipalities alike, with ’ no distinction and no basis for distinction between “voluntary” and “involuntary” (for a city charter is not a contract, but governmental regulation, changeable at the will of the legislature—Washburn v. Oshkosh, 60 Wis. 453, 19 N. W. 364), applies to Milwaukee. Kittredge v. Milwaukee, 26 Wis. 46; Harper v. Milwaukee, 30 Wis. 365; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. The sections of the charter relating to the Grand Avenue Bridge are not in conflict, but entirely harmonious, with *655the pre-existent duty. They merely direct how the subsisting duty shall be performed at the specific place, with no legislative attempt at increase or diminution of liability1-. Indeed, it has been ruled that a charter exemption, violative of the general scheme of highway dutv and liability, is unconstitutional. Hincks v. Milwaukee, 46 Wis. 559, 1 N. W. 230, 32 Am. Rep. 735.
That Wisconsin should look to Massachusetts for interpretation of adopted' legislation would naturally be expected. Section 103, c. 16, Rev. St. 1819', created liability without limitation of amount or condition of giving notice. Milwaukee v. Davis, 6 Wis. 377, decided in 1857, relied on by plaintiff to prove a liability independent of statute, holds the city answerable for negligence of highway officers without mentioning the statute, but in support of the ruling cites New England cases which show the liability to be purely statutory. After section 108 was amended (in line with New England statutes) by adding conditions and limitations, cases arose in which the conditions were combated, and the Wisconsin Supreme Court expressly ruled that the liability was wholly statutory and could therefore be cut down or taken away by the Legislature at will. Stilling v. Thorp, 51 Wis. 528, 11 N. W. 906, 41 Am. Rep. 60; Harper v. Milwaukee, 30 Wis. 365; McLimans v. Lancaster, 63 Wis. 596, 23 N. W. 689; Sowle v. Tomah, 81 Wis. 349, 51 N. W. 571; Reed v. Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733; Daniels v. Racine, 98 Wis. 649, 74 N. W. 553. In Reed v. Madison, the court, after holding that municipal liability for negligence of highway officers was wholly statutory and that even that liability was available only to travelers, -considered a question which had not theretofore arisen in Wisconsin, whether recovery could be had by a child who was using the street for travel and at the same time for play. “This court, having followed Massachusetts in respect to other questions of statu-rory liability, may well accept tlie decisions of that state as sufficient authority ou this question also.” In Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176, plaintiff’s intestate fell into an open draw. Liability under section 1339 was upheld on account of failure to provide barriers and lights. Counsel for the city, among other contentions, claimed that the alleged cause of action was based on the negligence of the bridge tender and that there was no liability because such a case was not within the section. Answering this claim, the court said:
“If the city liad provided suitable barriers and lights, and the bridge tender had omitted to use them, that would be a different case. It would ba the case which the defendant argues. It would be like the question decided in Butterfield v. Boston, 148 Mass. 544, 20 N. E. 113, 2 L. R. A. 447, which would be a strong authority if applicable.”
Wisconsin was free to join either of the opposing groups. With which she has allied herself seems unmistakable. What, then, is the duty of this court? To put ourselves in the Wisconsin atmosphere; to view the case from Wisconsin’s attitude; to accept the premises, the arguments, the conclusions, the exclusions, of the Wisconsin court as indicating the Wisconsin law; for only the accident of *656citizenship enabled plaintiff to come into the federal court with this question of local law.
The two doctrines start off facing in opposite directions. The “general group” furnishes no exact precedent on the facts of this case. The “New England group” does. If the question, as one of “case law,” be taken as 10» miles from the parting of the ways, the “New England group” has traveled the whole distance, except that Wisconsin has gone only 9 as yet. To determine the direction of the next step, Wisconsin would take, it is a wrong method to travel the 9 miles which the “general group” has gone in the opposite direction, infer what that group would do, and then drag Wisconsin 18 miles to take that step.
Since this record, like a patent case, must be read in the light of the particular art, no progress is made by pointing out the correspondences between the two groups in respect to the abstract propositions that a city is liable for private acts and is not for governmental, and the concrete instances of liability for proprietary acts and nonliability for acts of fire or police or health officers; for the split is not there. In Maxmilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468; the city was held not liable for the negligence of a city ambulance officer, on the ground that the service was for the public generally and not primarily for the city.' The case would read as well for a street or bridge officer, if the New York statutes were construed to cast on cities the duty of caring for streets and bridges in the interest of the whole people and not in the private interest of the city. Oliver v. Worcester, 102 Mass, 489, 3 Am. Rep. 485, is an instance of the “New England group’s” holding a city liable as a private proprietor. It does not touch the highway question. In Weightman v. Washington, 1 Black, 39, 17 L. Ed. 52, the Supreme Court sat as a local court for the District of Columbia, and construed local legislation along the theory of the “general group.”
The particular art herein involved being the construction of Wisconsin’s statutory scheme of highway and bridge duty and liability, it is a wrong method to take Wisconsin nonhighway and nonbridge decisions and from them attempt to prove that the Wisconsin Supreme Court logically should, and therefore probably would, hold that Milwaukee maintaineehand operated the drawbridge for its private benefit and advantage. And the attempt seems abortive.
In Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am. Rep. 480, the city was. made to respond for the seizure of Durkee’s goods under a void special assessment for the opening of a street. The officers acted under color of authority. The superior.- was liable because in truth the superior had no authority to take the property withoqt due process.of law.
To Nicolai’s complaint against the town of Vernon and highway officers, who .were about to include a part of his land within a highway (88 Wis. 551, 60 N. W. 999), the town demurred on the ground that it was not a proper party defendant. The officers in good faith attempted' to act as officers of the town upon which was cast the duty of caring for the highway. The town was therefore enjoined from invading private property without right.
Little v. Madison, 42 Wis. 643, 24 Am. Rep. 435, involves the same *657principle. The city licensed a bear show to be held in the streets. No authority; but there was color, by reason of the general power to license shows at proper places.
The nonapplicability of such decisions to a case of a highway officer’s negligent performance of an imposed duty to travelers is quite obvious. The city, through its officer, in keeping the highway open and .safe for travel, is performing a service for the sovereign (according to the theory of the “New England group”), and is not answerable in the absence of a statute creating liability. In doing acts not authorized by the sovereign, the city, of course, cannot plead the sovereign’s exemption from suit. The court, in Ziegler v. West Bend, 102 Wis. 17, 78 N. W. 164, said:
“That rule applies only to the doing of something which the city has no right to do, rendering a street or highway dangerous for public travel, not to a failure to do properly what a city has a right to do.”
And in Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448:
“In grading the street the city was doing one of the things which, as a municipal corporation, it was authorized to do. That work was done in an improper or negligent manner, so as to invade (which it had no right to do) the rights of the plaintiffs, not as members of the public, but as adjoining proprietors. Towards them the city’s act was not governmental, but proprietary.”
Towards travelers on the highway, the same acts of the same officers would be public or governmental, and not private or proprietary.
In Weisenberg v. Winneconne, 56 Wis. 667, 14 N. W. 871, the injury resulted from the failure of the village’s agents to open the draw in a bridge maintained by the village over Wolf river, a navigable waterway, whereby the vessel bn which the injured person was traveling collided with the bridge. The court declared that the village’s liability rested “upon the plainest of elementary principles.” The complaint Avas bottomed on the charge that the village “obstructed the river and neglected to remove the obstruction.” The village was granted by the state the right to maintain the bridge only on the condition that the draw should be opened “when the river at this point should be required for the navigation of vessels.” “When this duty was neglected, then the bridge became and was a complete obstruction to the navigation of the river.” These facts support a “straight common-law action,” or one based on “section 1598, Rev. St. Wis. 1898” (which makes any obstructor of navigation liable for damages), or one, it may be added, founded on the admiralty jurisdiction of the United States. These are the fundamental principles on which the court predicated the village’s liability. Of course, the question whether the village, in obstructing navigation, Avas entitled to plead the sovereign’s exemption, was not raised or discussed by the court, for the very good reason that the state could not grant the exemption. This results from the difference in the state’s relation to landways and Avaterways. Respecting landways, the United States may build and control a road through a state; but the roads built by the sovereign people within a state are the state’s highways. The parts thereof within cities the state may require to be maintained by the cities. Wis- *658■ consin bad the right to adopt the plan by which the service is governmental and the cities are clothed with the state’s exemption. Respecting waterways, Wisconsin had no such power. Over the navigable waters of the United States the several states by the Constitution (and Wisconsin as well by the Ordinance of 1787) have made the federal government the ultimate sovereign. The sovereignty has been exercised by taking jurisdiction of drawbridges and by declaring it to be unlawful to obstruct navigation by failure to open draws. Act'July 5, 1884, c. 229, § 8, 23 Stat. 148 [U. S. Comp. St. 1901, p. 3532]; Act Aug. 18,1894, c. 299, § 5, 28 Stat. 362 [U. S. Comp. St. 1901,'p. 3538] ; Act March 3, 1899, c. 425, § 17, 30 Stat. 1153 [U. S. Comp. St. 1901, p. 3534], No obstructor of navigation, whether an individual, a busi.ness corporation, or a city, can rightfully plead a local, statute or charter as a defense. And if a local court should deny a waterway traveler his rights under the paramount law, the federal courts, when properly invoked', will disregard the local decisions (Workmen v. New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314; Greenwood v. Westport [D. C.] 60 Fed. 560), though in respect to a landway traveler’s rights the duty of the federal courts is- to apply the local law (Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 L. Ed. 260). The Wisconsin Supreme Court reached its conclusion not merely by putting the common law of the state in line with the generalmari-time law, but also by calling attention to the fact that the Eegislature had expressly declared a liability for obstructing navigation 'by. failure to open the draw. And in order that this decision of a waterway case might not be confounded' with Wisconsin’s landway doctrine, the court said:
“The only highway [the italics are the court’s] in question in' this casé is this navigable river, and the liability of towns in respect to roads and bridges is not involved, for the deceased was not seeking to use the bridge for the purpose of travel, and it is complained of only as an obstruction to navigation.”
Thus the court in effect has declared that the only similarity be-; tween that case and this consists in the fact that in each there is a •drawbridge, and that in principle they are as different as if Winné-conne through her officer had obstructed navigation by dumping rocks into the river.
The conclusion that the Winneconne Case proves that the. rule of respondeat superior applies to this controversy involves a further error than the rejection of the premises, the reasoning, the spirit arid-scope, of the decision as rendered by the Wisconsin Supreme Court. Because Winneconne was held liable to Weisenberg for the negligence of a bridge tender, it is assumed that a city would therefore be liable to any one who was injured through the negligence of a bridge tender, no matter what was the measure of duty owing by the city to the injured party. That in Wisconsin a city may be answerable for the acts of its highway officers to one injured person, and for the same acts of the same officers not to another, is clear. Liability depends, on the nature of the right that can be asserted by the plaintiff, that right being the correlative of th’e duty owing to him by the city;' .For example: Highway officers in grading a highway negligently, obstruct *659a gutter, so that water flows over the sidewalk and into adjoining cellars. The water freezes and makes the walk dangerous, to the knowledge of the officers. The city is liable to any adjoining proprietor independently of statute, because it had no right to invade private property; not liable to a traveler on the highway independently of statute, becattse the officers were doing, though negligently, what they were authorized to do for the city on behalf of all public travelers; not liable, even under the statute, to one who uses the walk merely for skating, because to him no duty has been cast upon the city.
The irrelevancy of Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565, is pointed out by the Wisconsin Supreme Court. The city claimed exemption on the ground that, in building the cistern it was performing, through officers appointed for that purpose, a governmental function. But the evidence was otherwise. The city specially employed a mason to manage the construction. “The distinction between the two cases is very wide and quite apparent. ⅜ * ⅜ It was the legal duty of the city to construct cisterns for fire purposes, and it was engaged in the attempted performance of this duty through its own private agencies, and not through the fire department or its officers, or other officers of the city whose duty it was to perform such work.”
■ The supposition that Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176, proves that a drawbridge is not ruled by the Wisconsin highway doctrine, discloses a misapprehension. It was because the failure to provide barriers and lights at the draw was a failure to maintain the highway in a safe condition for travel that the city was held liable. And that liability was predicated, not at all on the theory that the maintenance and operation of a drawbridge is a special, private function of a city, or on the fancy that a drawbridge is not a bridge, but on the statute, which creates the liability for failure to perform properly the governmental function. If the negligence in that case is of the same character as in the present one, the plaintiff here would be defeated' by his failure to give the statutory notice.
Naurnburg counts only oil the duty Milwaukee owes to travelers of highways. Bridges, so far as land travelers are concerned, are merely parts of highways. Draws, as to them, are merely parts of bridges. Draws are put in, not in aid of navigation, but solely in aid of land travel and as a condition of maintaining bridges over navigable waters at all. Operation of draws requires bridge tenders. Milwaukee’s charter makes bridge tenders city officers as clearly as it does firemen and policemen. Maintenance and operation are put upon Milwaukee in equal terms, without distinction of duty and liability. Indeed, operation is necessarily a part of the duty of maintaining the highway. On the basis, then, that the bridge tender was a highway officer whose duty was imposed in the interest of the general public, of which Naurnburg was one, there is no reason to doubt what the Wisconsin Supreme Court, unless it should reverse a half century’s unbroken trend, would do with this question of local law.
The judgment of the Circuit Court will be reversed, and the cause-remanded, with directions to overrule the demurrer to the complaint.