Genske v. Veith

186 N.W. 1013, 176 Wis. 390, 1922 Wisc. LEXIS 181

• Court: Wisconsin Supreme Court
• Decided: March 14, 1922
• Status: Published

Opinion

Eschweiler, J.

The highway in question was laid out to permit the owner and occupant of a farm lying just west of plaintiff to obtain access to a public highway then existing near the southeast corner of plaintiff’s premises. On account of the hills encountered and the nature of the surface the highway took quite a roundabout course, and in a general way first to the northeast, then on a curve in an easterly direction, then southeasterly with several curves, then south, and finally to the southwest, and almost all of it over plaintiff’s farm.

The only alleged error now presented to us by plaintiff is to the effect that there were such substantial variations between the description of the highway as proposed in the application for the same from that in the published notice fixing the time and place of the hearing of such application and from that in the final order and as the same was staked out or marked upon the ground, and such indefinite terms in the several documents used, as made the proceedings defective.

We do not deem it necessary to detail the specific criticisms made by plaintiff upon these proceedings. The descriptions were sufficiently certain and definite to be within the rule established in prior holdings of this court. Jackson v. Rankin, 67 Wis. 285, 30 N. W. 301; State ex rel. Milwaukee, L. S. & W. R. Co. v. O’Connor, 78 Wis. 282, 47 N. W. 433; State ex rel. Gottschalk v. Miller, 136 Wis. 344, 348, 117 N. W. 809; Schillock v. Jones, 147 Wis. 119, 122, 132 N. W. 908; State ex rel. Ronglien v. Clemenson, 148 Wis. 268, 270, 134 N. W. 403.

The plaintiff was present at the time the supervisors made their determination as to the laying out of the highway. He participated in the proceedings and suggested several changes in the line of the highway as it went over his own premises and such changes were made to better suit his convenience, and he personally assisted the supervisors in staking out such highway. He at no- time made any objection to the laying out of such highway other than upon the question of damages.

Furthermore, on the trial when one of the defendants was being examined and asked to state what part plaintiff took in directing the course of the road and what he then said in regard to it, an objection was interposed by plaintiff’s counsel to such question on the ground that it was immaterial “because it appears affirmatively that they laid out the road in accordance with the petition.”

It is plain, therefore, that plaintiff ought not to be heard in this action of trespass to assert any claim on account of any deviations of the highway as ordered laid out upon his lands by reason of his actions at the time of the hearing and determination by the defendants (State ex rel. Milwaukee, L. S. & W. R. Co. v. O’Connor, 78 Wis. 282, 287, 47 N. W. 433), and on account of his express recognition on the trial below of the correctness of the proceedings.

By the Court. — Judgment affirmed.