190.08 Streams, highways, restored. Every corporation constructing, owning or operating a railroad shall restore every watercourse, street, highway, road or canal across, along or upon which such railroad may be constructed to its former state or to such condition that its usefulness shall not be materially impaired and thereafter maintain the same in such condition against any effects in any manner produced by such railroad. And may acquire any lands required to change or restore any highway, street, canal or watercourse, and lands so taken shall become a part of such highway or street. This section shall not apply to sloughs or bayous closed by the government prior to April 14, 1893, to aid the navigation of rivers; but in case such sloughs or bayous are thereafter closed by any railroad company such company shall be liable in damages to any person owning lands thereon injured thereby. The statutes for acquiring land by right of eminent domain shall apply in assessing damages for such closing.
Under this section, a railroad was under no responsibility to pay for the construction of a new railroad bridge necessitated by the channel alteration of a river as part of an improvement project as the statute imposes only a duty to “restore" against effects “produced by such railroad," and the conditions necessitating the alteration were in no way produced by the railroad. Metropolitan Sewerage District of County of Milwaukee v. Chicago Milwaukee St. Paul & Pacific Railroad Co. 69 Wis. 2d 387, 230 N.W.2d 651 (1975).
Under this section and the common law, a railroad was liable for the cost of replacing a bridge that impeded a creek's flow and hindered its drainage function as under the statute the railroad had a duty to restore the stream “to such condition that its usefulness shall not be materially impaired," and under the common law its duty was to continually maintain the bridge so as not to materially interfere with the water's natural flow. Metropolitan Sewerage District of County of Milwaukee v. Chicago Milwaukee St. Paul & Pacific Railroad Co. 69 Wis. 2d 387, 230 N.W.2d 651 (1975).
In the absence of sufficient proof that the old bridge was inadequate to carry increased water flow, the railroad was not liable for the cost of a new bridge. Metropolitan Sewerage District of Milwaukee v. Chicago & North Western Railway Co. 78 Wis. 2d 119, 254 N.W.2d 190 (1977).
This section did not apply to abandoned railroad property acquired by the DNR for development into hiking and biking trails. 77 Atty. Gen. 106.
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