Curtiss v. Town of Bovina

Siebecker, J. The trial court held that the inquiry as to-whether or not the bridge in question was a part of the highway of the defendant town was one for the jury under the evidence adduced. The evidential facts to support plaintiff’s claim that the bridge is part of the highway are that the bridge is adjacent to and a continuation of the road laid out by the town authorities to the west shore of the river, that persons using the road would necessarily have to use the bridge to cross the river in driving to any place on the east thereof, and that the persons who own land on the east of the river have in fact used the bridge as part of the road. In view of tire undisputed facts explaining such use of the bridge, this evidence is not proof in itself that the bridge is. a part of the highway. The uncontradicted facts are that the town board laid out the highway to the west bank of the Schioc river and expressly refused to extend it across the river so as to include the bridge. The town board also refused to assist in building a bridge over the river to enable the owners of lands on the east of the river to use the highway on the west. Several years prior to laying out this road the owners of lands-to the east of the river built this bridge for ingress and egress. They offered to maintain it for such purpose after the highway was established to the river, and [663] •they so maintained the bridge afterward. The town authorities did nothing to keep it in repair nor did they treat it as part of the highway. The plaintiff, however, claims that the town officers aided in maintaining and repairing the bridge by furnishing material for its repair, and in view of its location and proximity to the highway gave ground for the belief that it constituted a part of the highway. The evidence does not justify this claim. It appeal’s from the uncontradicted testimony that the parties who offered to maintain this bridge besought the town officers to permit them to take and use boards for repairing this bridge which had been removed from a culvert or another bridge and were not then needed for the immediate use of the town, that the officers granted such request, and that the material was so applied by these parties. There is nothing in this conduct to warrant an inference that the town authorities maintained and repaired this bridge as part of the highway. On the contrary, the testimony is positive that they regarded the bridge as a private way and not as part of the highway. The trial court submitted the case upon the theory that the evidence justified the conclusion that the town had adopted the bridge as a part of its highway and was es-topped from denying in this action that it was a lawful highway. A study and examination of the evidence convinces us that the testimony does not permit of such an inference and that it was error to submit such an issue to the jury. To es-top the town from denying that the bridge was a part of its highway requires that there should be evidence clearly tending to show an adoption of the alleged highway by the town. We find no such evidence in the record. Houfe v. Fulton, 34 Wis. 608; State ex rel. Lightfoot v. McCabe, 74 Wis. 481, 43 N. W. 322; Bogie v. Waupun, 75 Wis. 1, 43 N. W. 667. By the Court. — The judgment is reversed, and the cause remanded with directions to award judgment dismissing the complaint.