McKee v. Hull
| Decision Date | 01 November 1887 |
| Citation | 35 N.W. 49,69 Wis. 657 |
| Parties | MCKEE v. HULL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Grant county.
Carter & Cleary, for appellant.
W. H. Beebe, for respondent.
The respondent brought an action in justice's court against the appellant for wrongfully breaking and entering the plaintiff's close, and throwing down and destroying his fences. The defendant answered that the locus in quo was a public highway; that he did the acts complained of for the purpose of removing the fences of said plaintiff from said highway, and that what he did was by order of the board of supervisors of the town, for the purpose of opening such highway. The defendant gave the proper bond, and the case was sent to the circuit court of the county, where the same was tried. On the trial the jury assessed the plaintiff's damages at $3.75, and, by consent of the parties, the court was to order judgment either for the plaintiff for said damages, or for the defendant, if he found that as a matter of law the entry and alleged trespass were justified by the evidence in the case. Thereupon the court ordered judgment in favor of the plaintiff for the said damages, and the costs of the action. From the judgment so ordered the defendant appealed to this court. The counsel for the appellant in a very able brief contended that the evidence clearly established the following facts, viz.: That the supervisors of the town had regularly laid out a highway in said town over the locus in quo, and, after laying out the same, had ordered the same opened as a highway, and notified the plaintiff to remove his fences from within the bounds of such highway; that the plaintiff had neglected to so remove said fences for more than 30 days after the service of such notice, and thereupon the supervisors directed the defendant, the overseer of the highway of the district in which said alleged highway was located, to remove such fences and open such road, and that in pursuance of such order the defendant did the acts complained of.
After a careful consideration of all the evidence in the case showing all the proceedings taken by the supervisors in their attempt to lay out a highway over the place where the alleged trespass was committed, we find no irregularity which would render the proceedings void, except the omission to make an award of damages to Hook, one of the owners of the lands over which the road was attempted to be laid. This question has been the main point argued in this court by both parties, and we are led to believe that it was the point upon which the circuit judge declared the proceedings of the supervisors void, and no protection to the defendant. The evidence shows that Hook was a petitioner for the highway, and that such proposed highway led from an existinghighway across the lands of the plaintiff for about 80 rods west, and then extended west 80 rods more on the line between the lands of the plaintiff and of the said Hook, and terminated upon the lands of said Hook. The evidence also shows that there was an award of damages to the plaintiff, but no award of damages to Hook. It also appears that Hook stated orally to the supervisors that he did not want any damages, and waived all damages for his lands taken by the highway. There was no agreement in writing between said Hook and the supervisors in regard to his damages, and no written release of damages given by him to the supervisors or to the town.
This court has held that the supervisors of a town must comply with every substantial requirement of the statute regulating the laying out and opening of highways, otherwise their proceedings will be void. It has also held that certain provisions of the statute are provisions in which the public are interested, such as the presentation of the required petition, the giving of the public notice, the making of the order within the time prescribed by law, and other matters of a like nature; and as to such matters, neither one nor all the persons peculiarly interested can waive their performance. This court has also held that there are other matters which are personal to some of the people; among these is the requirement that written personal notice shall be given to the owners of the land required to be taken for the road. The service of this notice may be dispensed with when the owner expressly waives such personal notice. And so with the award of damages which the statute requires should be made to each owner of land over which any part of the proposed road is to be laid. This award may be waived, and if waived in the manner prescribed by statute, the proceedings will be valid. In the case of the notice, if the person entitled to receive it has waived such notice in a manner that will bind him, no other party interested in the highway can allege the want of such notice as an irregularity in the proceeding. At the same time, this court has held that when such personal notice has been given, and has not been waived by the party entitled to receive it so as to bind him, such irregularity in the proceedings may be taken advantage of by any other party, and the proceedings will he held void for such irregularity, unless the party complaining has in some way estopped himself from attacking the legality of the proceedings, as by receiving the compensation awarded to him for his lands taken for the highway. A failure to award damages, or in lieu thereof, to procure a release of damages, from an owner or owners of land taken for the highway, may be alleged by any other person interested in defeating the laying out of the highway as an irregularity. This we think was clearly decided in the case of Dolphin v. Pedley, 27 Wis. 469. The head-note in this case reads as follows: “A highway is not legally laid out unless the commissioners, within the time prescribed by the statute, file with the town clerk their order describing such highway, and an award of damages to all the persons through whose land it passes, and who have not released the damages.” The word “all” is italicized in the head-notes, and seems to have been justified by the language of the opinion in the case. There should have been another qualification added to the last clause of the head-note, “or who have not made an agreement in writing with the supervisors in regard to their...
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Fraser v. Mulany
...and determination are wholly void, and may be attacked collaterally or directly. Ruhland v. Jones, 55 Wis. 673, 13 N. W. 689;McKee v. Hull, 69 Wis. 657, 35 N. W. 49;Schroeder v. Klipp, 120 Wis. 245, 97 N. W. 909. In the light of these general rules, we proceed to consider the defects in the......
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Fuller v. Town Bd. of Town of Madison
...supervisors and be filed in the office of the town clerk with the order laying out, widening, or altering said highway. In McKee v. Hull, 69 Wis. 657, 35 N. W. 49, it is held that the failure of the town board to secure such an agreement or make such an award with respect to any of the land......
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Pocock v. Town of Medley
...nor does it amount to a waiver or release of the right to compensation or work an estoppel in pais against the signer. McKee v. Hull, 1887, 69 Wis. 657, 35 N.W. 49. Except for his purported signature to the petition, there is nothing in the record to evidence such an intention on the part o......
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Threedy v. Brennan
...because it did not award damages to the owners of the land which was taken for the public highway. Under the doctrine of McKee v. Hull, 69 Wis. 657, 35 N.W. 49, this irregularity rendered the entire proceeding void. * * The defendants claim that even though the proceedings were irregular, S......