35 N.W. 49 (Wis. 1887), McKee v. Hull

Citation:35 N.W. 49, 69 Wis. 657
Opinion Judge:DAVID TAYLOR, J.
Party Name:MCKEE, Respondent, v. HULL, Appellant
Attorney:The cause was submitted for the appellant on the brief of Carter & Cleary, and for the respondent on that of W. H. Beebe. For the appellant it was contended that damages were properly awarded to the respondent McKee,
Case Date:November 01, 1887
Court:Supreme Court of Wisconsin
 
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Page 49

35 N.W. 49 (Wis. 1887)

69 Wis. 657

MCKEE, Respondent,

v.

HULL, Appellant

Supreme Court of Wisconsin

November 1, 1887

Argued October 17, 1887.

APPEAL from the Circuit Court for Grant County.

The facts are sufficiently stated in the opinion.

Affirmed.

The cause was submitted for the appellant on the brief of Carter & Cleary, and for the respondent on that of W. H. Beebe.

For the appellant it was contended that damages were properly awarded to the respondent McKee, for laying the highway through his land, and he did not appeal therefrom, and a town order for the amount was duly tendered to him. Due notice was also given him to remove his fence, and he had refused to comply therewith, before the defendant, as road overseer, removed the same by order of the supervisors. The only defect claimed in the laying out of the highway in question was the failure to award damages to one Hook, the owner of other land taken for such highway, or to procure a release of damages from him. The decisions in Norton v. Peck, 3 Wis. 714; Hood v. Finch, 8 id. 381; Lumsden v. Milwaukee, id. 485, and Smeaton v. Martin, 57 id. 364, go no further than to hold that a land-owner to whom no damages are awarded may take advantage of the irregularity.

A taking of land for a highway, with the consent of the owner, is not unconstitutional, though that consent be verbal merely. Only such owner can revoke his verbal assent. Squires v. Neenah, 24 Wis. 588. However irregular may have been the proceedings to lay out a highway, the acceptance of damages by one of the land-owners makes it a legal road, as to him at least. Schatz v. Pfeil, 56 Wis. 429; Moore v. Roberts, 64 id. 538. Taking the compensation awarded, and acquiescing in the opening of the road, constitute a complete dedication and an estoppel in pais. Connehan v. Ford, 9 Wis. 244; Dubuque v. Maloney, 9 Iowa, 455; Karber v. Nellis, 22 Wis. 215. Here all the proceedings necessary to give the board jurisdiction to lay the highway were regular, and the various decisions based on want of jurisdiction do not apply. To decide that the failure to award damages to one land-owner on the line of the highway renders the whole proceedings void, especially where he has opened the same on his land and thus dedicated it, would lead to great inconvenience and absurdity. It would be contrary to the object of sec. 1270, R. S., which was to furnish the land-owner a ready means for obtaining compensation for his land. No time is fixed by the statute for filing the agreement as to damages, nor is the release required to be filed at all.

For the respondent it was argued that the statute requires the question of damages to be put at rest in some way before the order laying out a highway is made. The provisions of the statute must be strictly complied with, as the rights of the public as well as of individuals are affected thereby. Austin v. Allen, 6 Wis. 134; Dolphin v. Pedley, 27 id. 469; Damp v. Dane, 29 id. 429.

OPINION

[69 Wis. 659] DAVID TAYLOR, J.

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 [69 Wis. 660] said damages and the costs of the action. From the judgment so ordered the defendant appealed to this court.

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