Court Rules That Bridge Construction Where There is No Preexisting Section of Highway Does Not Preclude County Aid

July 1, 2007

In Town of Madison v. Dane County, a recent Wisconsin Court of Appeals decision, the court held that the county was responsible for reimbursing the Town of Madison for half of the costs incurred by the town in constructing a bridge. The county argued that the statute requiring reimbursement, Wis. Stat. §81.38(1), was only applicable to bridges spanning preexisting sections of highways and that the county was not responsible for reimbursement in this case because the bridge constructed by the Town of Madison connected previously unconnected portions of existing highways. The circuit court rejected this argument and required the county to reimburse the town pursuant to the statute. The Court of Appeals affirmed.

The bridge at issue was built over a railway corridor and connected two previously unconnected portions of a frontage road. The town first petitioned the county for aid in constructing the bridge in June 2004. The petition was denied the following September. In January 2005, the Town of Madison commenced construction of the bridge following a notice of claim to the county. The Town of Madison then brought a claim in circuit court challenging the county’s rejection of the petition.

The Town of Madison observed that Wis. Stat. §81.38(1) provided for reimbursement by the county for the construction of a bridge “on a highway maintainable by the town.” The town argued that the construction of the bridge fit this requirement and, therefore, entitled it to aid. The circuit court agreed.

The court rejected the county’s argument that the statute only permits aid for bridges on preexisting highways. In doing so, the court stated that by including the word “construct” in the statute, the legislature had not intended to limit application to the replacement or repair of existing bridges. The court also held that the legislature had not intended to exclude reimbursement for bridge construction where there was no preexisting section of highway.

The bottom line is that for a town to be eligible for county aid, the finished bridge must simply be part of a highway maintainable by the town.

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