State v. Castle

44 Wis. 670

Opinions

Taylor, J.

That there had been a public highway at the ' locus in quo, previous to the time when the road was closed up in April, 1876, all parties admit, and the only question upon that point was, whether the same had been lawfully discontinued previous to the time when the defendant renewed the obstructions in 1877. The proceedings of the supervisors, by which it is claimed the highway was discontinued, were void for two reasons.

First. The notice given was insufficient to give the supervisors jurisdiction to act in the matter. This court has so decided in Babb v. Carver, 7 Wis., 124; Austin v. Allen, 6 id., 134. It is too late to disturb these decisions.

Second. The supervisors lost all jurisdiction to proceed further on the petition, when they met on the 11th of March and adjourned to the 15th of April. At the time when these 1 proceedings were had, the statute did not provide for any adjournment of the proceedings upon the petition; and under . the law as it then stood, the supervisors were required to make a final order upon the subject of the petition, and file the same, within ten days after the time fixed in the notice for deciding upon the application; and in case of their failure to make and file- their order within said ten .days, the law declared that .they should be deemed to have decided against the application. See secs. 56, 57, 58, ch. 19, R. S. 1858; Tay. Stats., pp. 491-2. We.think there is no admissible construction of the statute by which it can be claimed that the supervisors had power to postpone their decision upon the petition beyond ten days after the time fixed in the notice for the first meeting, even though it might be held that they could adjourn their proceedings from day to day within said ten days.

This has been the acknowledged construction of the statute since its first enactment; and the legislature has given it that construction by the passage of ch. 376, Laws of 1876, providing that the supervisors may adjourn such hearing for not exceeding thirty days from the day fixed in the notice for the first meeting, and requiring notice of such adjournment to be given by posting notices as required for the first meeting.

f he proceedings of the supervisors being void, the highway was not discontinued by them. The learned counsel for the appellant insist that the officers of the town, the people thereof, and the state, ought to be estopped from alleging that the locus m quo is a highway, and have submitted a very able and forcible argument iu support of their position. The argument is based upon the evidence which shows that the supervisors agreed to close this highway, and open another on the section line, provided the defendant, and the other persons owning the land where the new highway was to be laid out, would donate to the public the lands necessary for the same, open the new road, and put it in a condition so that the public could travel it, without expense to the town; and that the defendant and others did donate the lands required for the new highway, and put the' same iu condition for the public travel, without expense to the town, and thereupon the road across the defendant’s land was closed by him with the approval of the then town supervisors.

After a careful consideration of the reasons urged, and an examination of the cases cited, we are unable to hold that this unauthorized proceeding on the part of the supervisors estops the state or the town authorities from insisting that the locus in quo is a public highway.

The authorities cited to show that the land-owner who has received from the town the damages for his lands taken for a highway, is estopped from alleging that the highway was not regularly laid out, go upon the theory that an individual may dedicate his lands to the public for a public use, and that when he has made such dedication, and the public has accepted the same, he cannot recall it. An individual may dedicate his lands for a public highway without any consideration given by the public; and if the public accept the dedication and expend the public money thereon, it will bar the donor from revoking such dedication. Nearly all the other cases cited by the learned counsel were cases relating to the proprietary rights of a municipal corporation or of the state. In such cases, where tbe state or a municipal corporation is authorized to purchase or convey real estate or other property, it is governed by the rules applicable to individuals to a-certain extent, and will be estopped by its grants and covenants whenever it would be in: equitable to permit it to avoid the same, although such grant or contract may not have been made in strict conformity to law. So with the cases cited showing that when the law authorizes a municipal corporation to construct and issue its negotiable bonds in performance of such contract, they are to be governed by the .rules applicable to individuals, and, where •its bonds are held by purchasers in good faith, the municipality is estopped from questioning the regularity of the proceedings antecedent to their issue. These cases, however, all hold, that where the municipality makes a contract in the absence of any law authorizing the making thereof under any circumstances, the municipality is not bound, even though its negotiable securities be held by bona fide holders. The class of cases last referred to do not aid the appellant if he seeks to estop the state or town by contract, as there is no law in force which authorizes the supervisors of a town to discontinue a highway by contract with the parties interested. The cases of Grant v. The City of Davenport, 18 Iowa, 179; The People v. The Township Board of Lowell, 9 Mich., 144; and Kneeland v. Gilman, 24 Wis., 39, differ in some respects from the mass of cases cited; and yet they all relate to the property rights of the municipality, and were cases in which the municipality acted through its highest authorized agents; whereas in the ease at bar it cannot be said that the supervisors, in the matter of opening, laying out or discontinuing highways, act for the town in any sense, except so far as they may bind the town, when 'their acts are authorized by law, to pay all the damages awarded to the owners in laying out and opening highways, and to open and keep in repair the highways so laid out and opened; and unless these officers proceed according to law in laying out a highway, the town can neither be compelled to open tbe same, nor to pay tbe damages awarded to tbe owners of tbe land taken for tbe same. Dillon on Corporations suggests very clearly the distinction between individuals and municipal corporations, and points out tbe cases in which they are to be treated as persons and subjected to tbe same rules of law which govern persons, and the cases in which they act as trustees of public trusts and are governed by different rules. “ Municipal corporations, as we have seen, have in some respects a double character, one public and tbe other private. As respects property not held for public use or upon public trusts, and as, respects contracts and rights of a private nature, there is no reason why they should not fall within tbe statute of limitations. . . But such corporation does not own and cannot alien public streets or places, and no laches on its part or on that of its officers can defeat the right of tbe public thereto. Tet there may grow up, in consequence, private rights of more persuasive force in tbe particular case than those of the public.” 2 Dillon on Corporations, § 533. This last suggestion was recognized and practically acted upon in tbe case cited in 18 Iowa, 179. In volume 1, § 381, tbe same learned author says: “ The general principle of law is settled beyond controversy, that the agents, officers or even city counsel of a municipal corporation cannot bind the corporation by a contract which is beyond the scope of its powers, or entirely foreign to tbe purposes of the corporation, or which (not being in terms authorized) is against public policy. This doctrine grows out of the nature of such institutions, and rests upon reasonable and solid grounds. The inhabitants are the corporators, the officers are but the public agents of the corporation. . . It results from this doctrine, that unauthorized contracts are void.” Again in § 382 he says: “ So a contract by a city to waive its right to go on with the laying out of. a street, or not, as it might choose, is, it seems, against public policy; and it is void if it amounts to a surrender of its legislative discretion; . . and a contract -'will not be sustained which tends to restrain or control the unbiased judgment of public officers. But a promise by individuals to pay a portion of the expenses of public improvements does not necessarily fall within this principle; and such promise is not void as being against public policy.”

In the case at bar, it is insisted by the appellant, and shown on the trial, that the road was discontinued by agreement of the supervisors with him and others interested, that if they would make a new highway without expense to the town, the old highway should be closed and the new one opened. It is at least questionable whether this contract would not have rendered both the discontinuance of the old road and'the laying out and opening of the new one void, had the proceedings been entirely regular. It is probable that such agreement by the defendant and his other interested associates did bias the judgment of the supervisors as to the necessity of closing the one road and opening the other. It is pretty clear from all the evidence that the supervisors would not have discontinued the old road without the performance of this agreement on the part of the defendant. It can hardly be said, from all the evidence in the case, that the supervisors decided that the public good would be promoted by discontinuing the old road and opening the new one. If it would have been so promoted, then they should have made the order unconditionally, and not dependent upon the promise of the defendant. It might with propriety be insisted that the order of the supervisors discloses that the alteration of the highway was made for the convenience of the defendant and his associates, and not for the public good. The law presumes that the defendant knew that the supervisors had no lawful right to discontinue the highway in the manner pursued by them, and therefore he is in no position to insist that the public should be bound by their acts. In the case of a person acting with the agent of an individual, the law will not permit him to take any advantage of a contract which is made with such agent, when he knows, at the time the contract is made, that such agent is acting without authority from his principal, unless it be shown that the principal, after full knowledge of such contract, has in some way ratified the same.

In the case at bar, it would seem that there was no ratification of the unauthorized acts of the supervisors of the town by the public, after the same had been done, either by permitting the transaction to remain unquestioned for a series of years (by reason of which the defendant might have expended large sums of money and acquired large pecuniary interests upon the strength of the status fixed by the acts of the supervisors), or in any other manner; but as soon as by law it was possible for the people of the town to remove the officers who had made the unlawful arrangement with the defendant, they removed them; and their successors, without delay, notified the defendant that they repudiated the unlawful transaction, and demanded that the original status of the parties should be restored.

Upon the whole case, we have no doubt but that the learned circuit judge was right in instructing the jury that the locus in quo was a highway at the time the defendant placed the obstructions therein, as proved upon the trial, and that the public was in no way estopped from alleging that fact as against the defendant by reason of the arrangement made with him by the former supervisors of the town.

The only other question in the case is, whether the learned circuit judge committed an error in charging the jury, as a matter of law, that the evidence showed that the defendant had wilfully obstructed the highway, within the meaning of sec. 101, ch. 19, E. S. 1858. The appellant’s counsel insist that this was a question of fact for the jury, and should have been submitted to them upon the whole evidence; and they rely upon the case of State v. Preston, 34 Wis., 675, as sustaining their exception to that part of the charge of the circuit judge. It will be seen by an examination of that case, that the judges who supported tbe decision expressly declare that it is based upon the special facts of that case. See p. 687. And the late learned chief justice, in his opinion in that case, clearly intimates that had the case shown the facts which are admitted to exist in this case, his opinion would hare accorded with the opinion of the circuit judge as giren to the jury. After reciting the facts in evidence, or offered to be put in evidence, and concluding that those facts did not show a willful obstruction of the highway by the defendant, he goes on to say: “Neither do we think that it makes any difference that the action given to recover the penalty is in form a civil action. The question presented is the same as if it were recoverable by information or indictment, as by the statute all penalties for the sum of one hundred dollars or more must be recovered.

. . Nor do we consider the public authorities without a remedy to vindicate the rights of the public, and to determine the unlawfulness of the obstruction, in cases where the penalty prescribed by the statute is not recoverable. The overseers of the proper road district may cause the obstruction to be removed as provided by the statute* and thus put the landowner to his action to recover his damages, in which action the rights of the public may be adjudicated, and the unlawfulness, if such be its character, determined against the party erecting it.” The facts upon which the court in that case held the obstructions not willful, were very nearly the same as the facts attending the first obstructions placed in the highway by the defendant in this case. The supervisors of the proper town had proceeded irregularly to discontinue the alleged highway, and had declared the same discontinued, and notified the defendant that he might close the same; and it was for such closing of the road upon the direction of the supervisors that the action was brought, without any subsequent direction to him to remove such obstruction, and without any subsequent order of the supervisors to the overseer of highways to remove such obstruction and open said highway. Upon tbis state of facts tbe learned chief justice says: “Tbe power of laying out, altering or discontinuing highways has, with one or two exceptions, been conferred exclusively upon the supervisors of the respective towns; and when they, acting as a board, either formally or informally, or with or without strict legal authority in the premises, notify the land-owner that no highway exists, and that he may lawfully erect liis fence, no penalty can be recovered against him for such erection under the statute in question. An obstruction so created cannot be regarded as willful within the meaning of the statute, even under the mildest construction which can here be put upon that term.” After this statement of the case and the conclusion of the court thereon, the remarks of the learned chief justice first above quoted follow.

The court having carefully confined the scope of that decision to the special facts of the case, it cannot be said to be decisive, if at all applicable to the facts of this case. The decision was made to rest upon the fact that the obstruction was placed in the highway at the direction and with the express authority of the supervisors of the town in which the road was situated, after they had taken proceedings to discontinue the same, and without any subsequent direction or notice from them to remove the obstruction so permitted to be placed therein by them. The facts in the case at bar show that after the defendant had obstructed the highway by the direction and permission of a former board of supervisors, after they had made an illegal and void order discontinuing the same, the next succeeding board of supervisors notified him that they repudiated the illegal acts of their predecessors in office, and directed the proper overseer of highways to remove the obstructions so placed therein, and open the highway again for public use; that the overseer removed such obstructions and opened the highway; and that, immediately thereafter, the defendant replaced the obstructions removed, and placed others therein, alleging his determination to continue to ob struct sucli highway against the authority of the then supervisors.

"We think these facts clearly bring the case within the suggestion of the chief justice in the case above cited, as to the facts which would constitute a willful obstruction under the statute. If they do not, then no case can be made upon which a recovery can be had under sec. 101 of said ch. 19, unless the defendant admits that he knew the locus i/n quo was a lawful highway at the time he obstructed the same. If he can protect himself by simply alleging that he was advised by his attorneys that the locus in quo was not a highway, or by alleging that he in good faith believed it was not a highway, it would be impossible to convict under the law. The case relied upon does not go to that extent; and we are clearly of the opinion that the principle of that decision ought not to be so extended. We think that every person who undertakes to obstruct a highway which has- been opened to the public for public travel for any considerable length of time, whether laid out and opened by the proper authorities or not, or a highway which the supervisors have laid out and opened, whether traveled for any length of time or not, takes upon himself the risk of the issue as to whether it is a public highway; and if, upon a trial in an action for the penalty, it turns out that the locus in quo is a highway by dedication or prescription, or by virtue of its having been regularly laid out and opened by the proper authorities, he can be convicted of willfully obstructing the same. When the citizen undertakes to act in hostility to the authority of the proper officers having charge of the highways of a town, and, in defiance of their orders, obstructs the same against the public travel, he takes the risk of showing that the place is not a public highway, and subjects himself to the penalty of the laws if he fails to show that the claim of the public officers is unfounded in .fact. The claim of the public officers whose duty it is to see that the public highways are kept open for the public use, that the locus in quo is a public highway, brought to the knowledge of the citizen, is sufficient to put him upon inquiry as to the fact; and if he obstructs such highway after such notice, and it is established that it is a highway, he is guilty of willfully obstructing the same, because the law presumes that if he had made proper inquiries he would have ascertained the fact of the existence of such highway.

We are of the opinion that there were no errors committed on the trial in the court below, and that the judgment of the circuit court must be affirmed.