#### Morgan, Respondent, vs. Budlong and another, Appellants.

*February 23*

March *14, 1916.*

*Negligence: Defective walk on land, adjacent to highway: Use by public with consent of owners: Injury: Liability: Dedication: Pleading.*

*1.*A complaint showing that plaintiff was injured by reason of a defect in a dilapidated arid dangerous sidewalk maintained by defendants upon their own land adjacent to a highway, over which the public, including plaintiff, traveled with the consent if not by invitation of the defendants, is *held,*on demurrer, to state a cause of action against the defendants.

■2. Allegations in such complaint that defendants built the sidewalk on their own land for the benefit of the public and that the public generally used such walk do not show a dedication of a public way over the land and acceptance of such dedication by the public.

Appeal from an order of tbe circuit court for Milwaukee county: Oscar M. Eextz, Circuit Judge.

*Affirmed.*

Tbe action is for damages for personal injuries received by plaintiff.

Tbe allegations of tbe amended complaint, so far as material, show that tbe defendants are owners of property in tbe town of Wauwatosa abutting on Grand avenue, a public highway; that prior to November 29, 1913, tbe defendants built a sidewalk upon their property “to be used by persons passing in and along from said Grand avenue over and upon tbe property of said defendants;” that tbe sidewalk was used extensively by tbe public with tbe consent of tbe defendants; that on November 29, 1913, and prior thereto said sidewalk was out of repair; that it contained, among other things, boles and loose boards and was unsuitable and unsafe for public travel or use; that on November 29, 1913, plaintiff while passing over said sidewalk stepped into a bole in said sidewalk and was injured; that said defect bad existed for a long time prior to said date to defendants’ knowledge.

*579There is no allegation in tbe complaint that tbe sidewalk was insufficient or defective wben originally built. Tbe contention is it became decayed and dilapidated by wear and use. It was admitted on tbe argument bere that tbe sidewalk was not in tbe public highway, but along tbe land of tbe defendants adjacent to said highway.

Tbe complaint was demurred to for want of facts sufficient to constitute a cause of action. Tbe demurrer was overruled ivitb leave to answer. This appeal is from tbe order overruling tbe demurrer.

Eor tbe appellants there was a brief by *Lines, Spooner, Ellis &*Quarles, and a supplemental brief by *Lines, Spooner, Ellis & Quarles,*attorneys, and *Willet M. Spooner,*of counsel ; and tbe cause was argued orally by *Leo Mann.*

Eor tbe respondent there was a brief by *Lehr & Kiefer,*attorneys, and *J. Elmer Lehr,*of counsel, and oral argument by *J. Elmer Lehr.*

KeewiN, J.

An examination of tbe amended complaint demurred to shows that tbe walk was built on tbe land of defendants and not in tbe public highway. And while it is alleged that tbe walk was much used by tbe public, there is no allegation of acceptance of any dedication to tbe public, nor are any facts pleaded which show that tbe town became chargeable with tbe duty of keeping tbe sidewalk in question in repair or accepting it as a public wall;:. If it were alleged that tbe sidewalk in question was constructed within tbe limits of a public highway and accepted by tbe public as a part of such highway, a different question would be presented. Giving tbe allegations of tbe complaint tbe most favorable construction they will bear in support of tbe claim of appellants they merely show that tbe defendants built tbe sidewalk on their own land for tbe benefit of tbe public, and that tbe public generally used such walk in traveling over it. These allegations fall far short of showing dedication of a public *580way by a landowner over bis land and acceptance of sncb dedication by tbe public.

Tbe allegations of tbe complaint sbow quite clearly that tbe defendants maintained an unsafe and dangerous walk upon tbeir premises over wbicb tbe public, including tbe plaintiff, were permitted to travel with tbe consent if not by invitation of tbe defendants. Tbe instant case is controlled by *Brinilson v. C. & N. W. R. Co.*144 Wis. 614, 129 N. W. 664, and other cases similar in principle to tbe *Brinilson Case.*

*By the Gourt.*— Tbe order is affirmed.