Codner v. Town of Bradford

Highway — Proof of Duty of Town to Maintain, etc. — Where a town recognizes the existence of a highway by the expenditure of labor and taxes in its repair under the direction of its officers, and by keeping it open for travel; in an action brought to recover damages sustained by reason of its defective and insufficient condition, it is estopped from denying its existence as a highway and its duty to keep it in repair. Houfe ¶. Town of Fulton, 34 Wis., 608.

ERROR to the Circuit Court for Rock County. Action on the case brought by Codner against the town of Bradford to recover damages sustained by reason of the insufficiency of a bridge in that town over a creek; he having attempted to pass over it in a careful manner, the bridge broke down and his team was precipitated into the gulf below and one of his oxen was killed and his wagon broken, etc. After proving the insufficient and unsafe condition of the bridge at the time the injury occurred, and for a considerable time previous, and the occurrence of other injuries for that cause, the plaintiff proved that the road- on which the bridge was built had been laid out and opened and used as a highway by the inhabitants of the town and the public generally for more than six years previous; that the town of Bradford had for more than three years assumed and exercised jurisdiction over the road, by making erections and repairs upon the bridge in question, and by appropriating money and highway labor, raised and appropriated by the town for highway purposes; upon the bridge and highway in question; that the road was surveyed •and laid_ out, and that directly thereafter it was opened and used as a public highway, and was thenceforward continued as such. The counsel for the town insisted and argued, that the existence of the road, as constituting a public highway, had not ‘been proved; that the legal establishment of the road could 'only be evidenced by the production of the application for laying it out, the original survey and plat, and the record of the commissioners approving thereof, and the commissioners’ 'directions for opening and working the road; or by proving the existence and use of the road as a public ^highway for ‘twenty years. The county court, after hearing the evidence, decided and ruled that the road, as a highway, could only be proved by record evidence, or that it had been open and used as such for twenty years. Judgment passed for the defendant, and the plaintiff sued out this writ of error. cited R. S., ch. 16, § 103; Heed v. Northfield, 13 Pick., 94 ; Worster v. Canal Bridge, 16 id., 541: 1 Gilm., 4-15 ; Tate v. State, 5 Blackf., 74; 3 Ghitty Crim. Law, 570 ; 3 Term, 265 ; 2 id., 148 ; 14 Yt., 288, 443, 280 ; 2 Greenl. Ev., 622-662; 19 Johns., 365. The evidence of the laying out of a highway under the laws of the territory or state of Wisconsin is a matter of record, and it must be proved in the same manner as other records. R. S., 176, sec. 55; id., ch. 107, sec. 6; Greenl. Ev., 86 and 50. A town is only bound to repair legal highways. R. S., eh. 59, sec. 5; 13 Pick., 97; 1 id., 180, 189 ; R. S., ch. 16, see. 80 ; 7 Wend., 145. No road in this state is a legal highway unless laid out pursuant to the provisions of laws of the United States or the state or territory of Wisconsin, or unless the same has been used for twenty years. R. S., ch. 4, sec. 1; 2 Johns., 424; 7 id., 106; 9 id., 365 ; 17 id., 277; 2 Cow., 426 ; 2 Greenl.' Ev., 662.