State ex rel. Funke v. Burgeson

Wisconsin Supreme Court

State ex rel. Funke v. Burgeson

84 N.W. 241, 108 Wis. 174, 1900 Wisc. LEXIS 192

CourtWisconsin Supreme Court

DecidedNovember 16, 1900

StatusPublished

Cited by5 cases

This text of 84 N.W. 241 (State ex rel. Funke v. Burgeson) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Funke v. Burgeson, 84 N.W. 241, 108 Wis. 174, 1900 Wisc. LEXIS 192 (Wis. 1900).

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Opinion

WiNsnow, J.

The statutes authorize the supervisors of a town, upon proper petition and notice, “ to lay out, alter, [177]*177widen or discontinue any highway,” and require them to incorporate in their order “a description of the highway so laid out, altered, widened or discontinued.” Stats. 1898, secs. 1265-1269, inclusive.

It is evident from the terms of the statute that the alteration of a highway is an entirely different thing from the “laying out ” or the “ discontinuance ” of a highway. The alteration of a highway, as the word itself indicates, means the change of course of an existing highway, leaving it substantially the same highway as before, but with its course in some respects changed. While an alteration will necessarily require the condemnation of additional lands, and will result in the vacation or discontinuance of that part of the former highway not included within the limits of the altered course, the proceeding to alter á highway does not thereby become a proceeding to lay out a new highway or to discontinue an old one. The proceedings are separate and distinct, and intended so to be; and a new and separate highway cannot be laid out upon an application to alter an existing high way. Comm. v. Cambridge, 7 Mass. 158; Vedder v. Marion Co. 28 Oreg. 77. In the present case it is plain that the attempt made was to lay out a new and separate highway with different termini, under the claim that it was simply an alteration of two existing highways.

Furthermore, it is impossible to tell from the description in the petition and order what parts of the existing highways are intended to be altered. The statute requires a description of the highway so altered to be incorporated in the order, so that in this respect also the proceedings fail to comply with the statute.

By the Court.— Judgment reversed, and action remanded with directions to reverse the proceedings of the supervisors.

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WiNsnow, J.

The statutes authorize the supervisors of a town, upon proper petition and notice, “ to lay out, alter, [177]*177widen or discontinue any highway,” and require them to incorporate in their order “a description of the highway so laid out, altered, widened or discontinued.” Stats. 1898, secs. 1265-1269, inclusive.

It is evident from the terms of the statute that the alteration of a highway is an entirely different thing from the “laying out ” or the “ discontinuance ” of a highway. The alteration of a highway, as the word itself indicates, means the change of course of an existing highway, leaving it substantially the same highway as before, but with its course in some respects changed. While an alteration will necessarily require the condemnation of additional lands, and will result in the vacation or discontinuance of that part of the former highway not included within the limits of the altered course, the proceeding to alter á highway does not thereby become a proceeding to lay out a new highway or to discontinue an old one. The proceedings are separate and distinct, and intended so to be; and a new and separate highway cannot be laid out upon an application to alter an existing high way. Comm. v. Cambridge, 7 Mass. 158; Vedder v. Marion Co. 28 Oreg. 77. In the present case it is plain that the attempt made was to lay out a new and separate highway with different termini, under the claim that it was simply an alteration of two existing highways.

Furthermore, it is impossible to tell from the description in the petition and order what parts of the existing highways are intended to be altered. The statute requires a description of the highway so altered to be incorporated in the order, so that in this respect also the proceedings fail to comply with the statute.

By the Court.— Judgment reversed, and action remanded with directions to reverse the proceedings of the supervisors.

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Bluebook (online)

84 N.W. 241, 108 Wis. 174, 1900 Wisc. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-funke-v-burgeson-wis-1900.

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