If a dam is washed out and the owner refuses to replace the dam, the Commissioner of Highways, with or without the consent of such owner or occupier, may construct a highway across the dam, but in case the owner desires to replace the dam and use the pond, he shall be permitted to do so by paying to the Commissioner of Highways one-half of the cost and expenses of replacing the dam, up to a width of 12 feet at the top, and the difference between the cost, if any, of replacing the bridge normally required to carry the water of the stream and the cost of a bridge that includes floodgates and adequate spillway.