Opinion
March 31, 1953 —
May 5, 1953.
APPEAL from a judgment of the circuit court for Richland county: ARTHUR W. KOPP, Circuit Judge. Affirmed.
For the appellant there was a brief by James G. Robb, city attorney, and Brindley Brewer of Richland Center, and oral argument by Mr. Robb and Mr. F. L. Brewer.
For the respondents there was a brief by Black Fowell of Richland Center, and oral argument by O. D. Black.
Action by resident taxpayers of defendant city to compel the replacement of a bridge.
In the year 1912, approximately, certain promoters of a real-estate development in the city of Richland Center built a footbridge across the Pine river which connected that part of Second street lying east of the river with its extension in the newly developed area on the west side. The bridge was in regular daily public use thereafter. In 1917 the proprietors of the bridge offered to "give and donate" it to the city "providing the city will accept, keep up, and maintain the same." By resolution the city council accepted the offer. One of the donors of the bridge, F. O. Smith, was a member of the council and voted to accept the proprietors' offer. Thereafter the city adopted an ordinance regulating the use of the bridge, kept it in repair, erected additional safeguards, and lighted it at night with lights which the city installed and operated. In all respects the bridge was maintained and used as a part of the city's street system until July 21, 1951, when a flood washed it out. The city salvaged some of the wreckage and use it for other city purposes and what it could not use it sold for junk. It has not replaced the bridge and declines to do so, asserting that its contract with the donors, by which it agreed to "keep up and maintain" the structure is null and void under sec. 976t, Stats. 1915, and subsequent supplementary and amendatory legislation. Such sec. 976t recites:
"No city officer shall be interested, directly or indirectly, in any improvement or contract to which the city is a party, and whenever it shall appear that such is the case such contract shall be absolutely null and void and the city shall incur no liability whatever thereon. . . ."
The same provision is now part of the Wisconsin statutes as sec. 62.09 (7) (d), unchanged except for certain exceptions not material here.
Upon the city's refusal to replace the bridge, action was commenced by nineteen taxpayers who, except for one, lived west of Pine river and were served by the bridge. The one was a storekeeper whose shop was at the east end of the bridge and whose customers used the bridge to reach him. The complaint demanded that the court's judgment should determine the city's liability to maintain and replace the bridge and should include an order directing such replacement by the city. The judgment, signed June 30, 1952, ordered the city to replace and maintain the bridge as a public way.
Other material facts will be stated in the opinion.
The city's refusal to restore the bridge rests on the proposition that its duties in respect thereto are only those imposed on it by the contract by which it acquired the bridge and, that contract being void because of the interest which one of the aldermen had in it, performance of the contract obligations cannot be compelled. It is true that the complaint states that the action is brought for a judicial determination of the city's liability to make the bridge again it available for public use in compliance with the conditions under which the original bridge was given to said city."
Sec. 370.01 (12), Stats., relating to construction of statutes, provides the word "highway" may be construed to "include all public ways and thoroughfares and all bridges upon the same." A city street is a public highway. 25 Am.Jur., Highways, p. 342, sec. 7. Within the city the words it street" and "highway" are interchangeable. It is the city's duty to keep its public streets, ways, and thoroughfares, which includes bridges which carry such thoroughfares across streams, in repair and the legislature has placed this responsibility specifically on the city board of public works. Sec. 62.14 (6). In State ex rel. Wisniewski v. Rossier (1931), 205 Wis. 634, 639, 238 N.W. 825, we referred to the duty as a "clear" one.
The alleged contract did no more than recite obligations which the city incurred as a matter of law if it accepted the gift of the bridge. The evidence demonstrates without any contradiction that the gift was accepted and for more than thirty-five years the bridge has been used as a public highway or thoroughfare. The city ordinances have regulated its use. The city has gone beyond the conditions of the so-called contract and has not only kept up and maintained the bridge but has improved it, notably by putting wire fencing along its sides to make it safer for the school children who used it and by installing electric lights upon it, integrated with the city street-lighting system. The conclusion is irresistible that the city made the bridge a part of its street system and, quite apart from any contract, the legal duties of the city in respect to its streets have attached. These duties are not to be ignored because a supposed contract reiterated them.
When the bridge was washed out the city salvaged some of the wreckage and used it in other municipal construction and sold the useless debris for junk. The trial court considered the city was estopped to assert that the bridge was a private one which had never become the city's property, citing, among others, 25 Am. Jur., Highways, p. 344, sec. 10, and Houfe v. Fulton (1874), 34 Wis. 608. While we consider the estoppel solution perfectly feasible, in our own view the facts go farther than estoppel and constitute definite proof that regardless of the contract the city accepted the bridge and improved, regulated, and maintained it not in performance of any contract obligation but in performance of its "clear duty" to maintain its streets (highways) and keep them in repair. Accordingly, it is the city's obligation to replace this portion of the public highway which has been washed out in the same manner that it would be obligated to repair or replace any other portion of its streets which had been, destroyed.
By the Court. — Judgment affirmed.