Schroeder v. Klipp

97 N.W. 909, 120 Wis. 245, 1904 Wisc. LEXIS 63

• Court: Wisconsin Supreme Court
• Decided: January 12, 1904
• Status: Published

Opinion

Cassoday, O. J.

1. It appears, and is undisputed, that for many years prior to December 14, 1901, there was a public highway running east and west on the line between sections 3 and 10 in the town of Westfield, in Sauk county, and that the same continued east indefinitely. It is a portion of that highway which is claimed to have been discontinued. That highway, at the west end thereof, intersected another highway running north and south on the west lines of sections 3 and 10. Eronx the northeast corner of that section 10 there was a highway running south from the highway in question, on the east line of that section. Erom a point in the highway in question, about forty rods west of the northeast corner of that section 10, there was another highxvay “running northwest past the residence of George A. Meyer,” as mentioned in the petition. The petition was for the discontinuance of “all that portion” of the east and west highway in question lying “east of the residence of Carl Schroeder to the intersection” of the “road running northwest past the residence of George A. Meyer.” The residence of the plaintiff, Carl Schroeder, appears to hare been south of the highway in question, and some 180 rods east of the west line of that section 10, and about eighty or ninety rods west of the intersection of the highway in question with the road running northwest past Meyer’s residence. In other words, the portion of the road claimed to have been discontinued constituted about one third of the highway in question, between its intersections with the north and south road at the west and the northwest road at the east. The important question is whether it was legally discontinued. The trial court held that it was not legally discontinued, for want of the requisite notices of the meeting of the board December 14, 1901, and for the further reason that the contents of the order of discontinuance were never agreed upon by the board acting as a body, but. were written by the clerk, and then signed by each member of the board in the absence of the others. The statute declares:

“Whenever the supervisors shall . . . discontinue any highway, they shall make and sign an order therefor, incorporating therein a description of the highway so . . . discontinued, . . . and such order shall be filed and recorded in the office of the town clerk, who shall note the time of recording the same in the record. Such order, together with the award of damages . . . shall be so filed within ten days after the day fixed by their notice or adjournment for deciding upon such application; and in case such, supervisors shall fail to file such, order and award within the ten days-aforesaid they shall be deemed to have decided against such application.” Sec. 1269, Stats. 1898.

Counsel raise the question whether the contents of the-order, as finally written, should not have been agreed upon by the board, acting together, and then signed by them. But for the purposes of this appeal we shall assume that the order-was in the proper form, and was agreed upon by all the members of the board, and then signed by them and filed with the-clerk. Upon such assumption, it is obvious that, the order-being lost and destroyed, its contents could be established by secondary evidence. Being so established, as we assume it was, it is to.have the same effect as though it had never been lost or destroyed. Counsel for the plaintiff contend that such order, so established, raised a conclusive presumption that all requisite" notices of the meeting of the board had been given. In support of such contention counsel cite State ex rel. Iola v. Nelson, 57 Wis. 147, 15 N. W. 14; Jackson v. Rankin, 67 Wis. 285, 30 N. W. 301. But neither of those cases refers-to the section of the statute which must govern in the case at bar, and which declares:

“The order of the supervisors . . . discontinuing any highway . . . and the record or a certified copy thereof, shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to_the making; of such order.” Sec. 1298, Stats. 1898.

That section has been in force for many years, and the decisions of this court are numerous to the effect that the presumption mentioned in the section may be overcome by evidence. Roehrborn v. Schmidt, 16 Wis. 519; Neis v. Franzen, 18 Wis. 537; Williams v. Mitchell, 49 Wis. 284, 5 N. W. 798; State v. Logue, 73 Wis. 598, 41 N. W. 1061; State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060;; Williams v. Giblin, 86 Wis. 147, 149, 150, 56 N. W. 645.

2. This makes it important to consider what notices of the-meeting of the hoard December 14, 1901, -were required by the statutes, and whether the evidence shows that any of such notices were not given. The statute declares:

, “On application made to supervisors for laying out, widening, altering or discontinuing any highway they will make out a notice fixing therein a time and place at which they shall meet and decide upon such application. The applicants, shall, at least five days previous to such time, cause such notice to be given to all the occupants of the lands through which such highway may pass; and in case such application shall be for the discontinuance of the whole or any portion of the highway such notice shall be given to the occupants of' all the lands abutting or touching on such highway the whole or any part of which is sought to be discontinued, which notice shall be served personally or by copy left with or at the usual place of abode of such occupant of such lands, and such notice shall also be posted up in three public places in said town at least ten days before the time of such meeting of' the supervisors.” Sec. 1267, Stats. 1898.

Just what is meant by the whole highway, a portion of' which is .thus sought to be discontinued, may not in all cases be easily determined. In the case at bar it certainly includes, all of the highway on the line between sections 3 and 10. The occupants of lands abutting upon the portion of such highway not sought to be discontinued were entitled to have-notice served upon them personally or by copy just as much as the occupants of lands abutting upon the portion of such highway so sought to be discontinued. It required the whole of such highway to enable public travel to pass from one of' such intersecting highways to the other. Here it is in evidence and admitted that the lands of Henry Koenecke-abutted upon the west end of that highway, on both sides, for a distance of eighty rods, and that he occupied the same, but that there was no proof made before the town hoard that the notice of the meeting of December 14, 1901, required by the section of the statute last cited, had been served on him personally or by copy as therein required. The same is true of Fred ITuebing, who owned and occupied the northeast ■quarter of the northeast quarter of section 9, and which abutted upon the west end of the highway in question. The ■same is true of the defendant in this action, who owned and occupied the southeast quarter of the southeast quarter of section 4, which also abutted upon the west end of the highway in question. The supervisors were only authorized by the statutes to “proceed To examine personally such highway,” and to “hear any reason” that might “be offered for •or against . . . discontinuing the same,” and “decide against the application upon being satisfied that the notices required in” sec. 1267 of the statute had “been duly given.” Sec. 1268, Stats. 1898. The town board, as well as the petitioners, obviously acted upon the theory that the statutes only required such notices to be given to the occupants of lands abutting upon the portion of the highway so proposed to be ■discontinued. The four owners and occupants of the lands abutting upon the portion of the highway so sought to be ■discontinued signed the petition for the same, and thereby waived the necessity of such notice, as to them. And yet, oven as to such petitioners, this court has held:

“Though the owner of land over which it was attempted to lay out a highway signed the petition therefor and hence was not entitled to notice of the meeting of the supervisors, yet he may avail himself of the want of notice to the public ■and other owners, to invalidate the proceedings.” State v. Logue, 73 Wis. 598, 601, 41 N. W. 1061, 1062.

In that case, Mr. Justice Tayloe, speaking for the court, said: the proceedings of the supervisors in laying out a highway has been frequently depided by this court.” Citing numerous-cases. See, also, Williams v. Giblin, 86 Wis. 150, 151, 56 N. W. 645.

“The evidence of the- defendant also establishes the fact that the notices of the application for laying out the highway, and of the time and place when and where they would meet to consider such application, which are required to be given by sec. 1267, R. S. 1878, were not in fact given. That the failure to give the notice required by said section is fatal to

Manifestly, the failure to serve such notice personally or by copy upon such abutting occupants of lands on such highway, at the west end thereof, was fatal to the proceeding's.

3. Besides, one of the sections of the statutes quoted above provides, in effect, that the order discontinuing a Highway or any portion thereof, “together with the award of damages” therefor, shall be filed in the office of-the town clerk “within ten days after” the decision upon the application, and, in case of failure to so “file such order and award within” the ten days, the supervisors “shall be deemed to have decided' against such application.” Sec. 1269, Stats. lá98. The next section provides that in case such owner fails to agree with the supervisors as to the compensation to be received, or gives a written release of all claims for damages, the “supervisors shall, at the time of making such order, assess the damages which such owner shall sustain.” See. 1270, Stats. 1898. It is enough to say that in the case at bar there is no claim or pretense that any damages were ever assessed or released or waived by any abutting owner — much less, by the three abutting owners at the west end of the highway in question— or that any award of damages was ever filed in the office of the town clerk. We must hold that the order purporting to-discontinue a portion of the highway in question was a nullity-

4. After having stipulated before any evidence was introduced that the locus in quo was a highway up to the time of the attempted discontinuance, and the trial had proceeded, and testimony taken which- covers thirty-eight typewritten pages, including a considerable portion of the defense, counsel for the plaintiff attempted to prove that the defendant, in removíog the fence, “went outside of the old highway it•self, as it formerly existed,” and while he admitted “that there was travel over that place, and that a highway had been laid out there,” yet he contended “that the highway as traveled was not the highway as laid out.” Counsel for the defendant insisted that upon the faith of the stipulation they •had prepared their testimony and tried the case, and the trial ■court thereupon held that such stipulation was binding upon the plaintiff. We have no doubt of the correctness of such ■ruling. Besides, the mere fact “that the highway as traveled” was “not the highway as laid out” is no ground, for claiming that the locus in quo was outside of the highway. Neis v. Franzen, 18 Wis. 537; Fitzgerald v. Berlin, 64 Wis. 203, 24 N. W. 879. We must hold that the nonsuit was properly granted.

By the Court. — The judgment of the circuit court is affirmed.

•Siebeckee, T., took no part.