Smith v. Town of Onalaska

150 N.W. 415, 159 Wis. 290, 1915 Wisc. LEXIS 4

• Court: Wisconsin Supreme Court
• Decided: January 12, 1915
• Status: Published

Opinion

SibbeciceR, J.

The plaintiff claims that he is damaged, as owner of the two forty-acre pieces of land heretofore described, by the action of the town board and the superintendent of highways in changing the course of the creek within the limits of the highway. He instituted proceedings under sec. 1237, Stats., by applying to the supervisors of the town for the appointment of electors to appraise his alleged damages. The required steps under this statute for the appraisement of the damage plaintiff claimed to have suffered were taken and resulted in a determination by the appraisers that the plaintiff had sustained no damages. Upon appeal by the plaintiff from such determination the matter proceeded to trial in the circuit court and resulted in a judgment of dismissal of plaintiff’s complaint.

The plaintiff contends that he is entitled to recover in this proceeding -whatever damages resulted'to his property by diverting the course of this creek, within the limits of the highway, pursuant to the order of the town board and the action of the superintendent of highways in making the alleged improvement of the highway in the manner above stated. This contention of the plaintiff cannot be sustained because he claims the right to recover for injuries not embraced in the proceeding provided for in secs. 1236, 1237, and 1237a, Stats. Sec. 1236 authorizes any superintendent of highways and persons under his direction ... to enter upon any lands adjoining to or near any highway in his town or district and construct such drains or ditches as may he necessary for the improvement or preservation of such highways;” and that he “. . . may enter upon any unimproved lands adjoining to or near any highway in his town or district and gather or dig stones, gravel, sand, clay or loam and cut any wood or trees, and take away the same for the purpose of making or improving any highway. . . .” Sec. 1237 makes provision for “Any owner or occupant of lands so entered upon or used for any of the purposes mentioned in the preceding section,” who feels aggrieved, to apply to the supervisors of the town for appointment of three electors to appraise the damages, who shall proceed in the manner prescribed and make report of their ap-praisement by filing it with the town clerk. Sec. 1237a makes provision for an appeal from such appraisement and for a trial of the question of the alleged damages in circuit court. It is manifest that this proceeding was provided for an appraisement of the damages caused in cases where the superintendent of highways or persons under his direction entered upon lands “adjoining to or near any highway in his town or district” and constructed drains or ditches thereon or took materials therefrom for the purpose of making or improving highways. The provisions of the statute contain nothing to indicate that this proceeding may be employed by an abutting landowner for the recovery of any damages he claims to have suffered by any wrongful acts of the town board or the superintendent of highways or any persons acting under their direction for the improvement or preservation of a highway. The context of these statutes clearly indicates that they provided a proceeding for the purposes of appraisement only of the damages occasioned by such town officers or agents who enter the private inclosnre of premises adjoining to or near a highway under the authority granted by these statutes for the purpose of enabling the owner to secure payment of his damages thereby occasioned. The inquiry is, Did the plaintiff present a case for an appraisement of damages to his lands under the provisions of these statutes? It is admitted without dispute that neither the superintendent of highways nor any person under his direction actually entered upon the plaintiff’s land beyond the limits of the highway to construct any drain or ditch or take any material therefrom for the purpose of improving or preserving a highway. The plaintiff asserts that he suffered injury from the acts of the town officers and agents in diverting the course of the creek within the limits of the highway, as specified in the foregoing statement/by depriving him of the use of the water in the creek near his pasture forty and by increasing the liability of flooding his lands in case of high water and by injuring his facility of ingress and egress. These alleged injuries are not the result of any entering on or taking of material from his lands within the contemplation of the provisions of these statutes under which the plaintiff proceeded for an ap-praisement of his damages. We have examined the evidence and find the circuit court correctly applied the law upon motion after verdict, by directing a judgment in defendant’s favor, notwithstanding the-verdict, upon the ground that the evidence failed to show that plaintiff-had any right to recovery under the provisions of sec. 1236,- Stats.

By the Court. — The judgment appealed from is affirmed.