Agnew v. Hotchkiss

• Decision Date: 12 January 1926
• Citation: 189 Wis. 1,206 N.W. 849
• Parties: AGNEW ET AL. v. HOTCHKISS ET AL.
• Court: Wisconsin Supreme Court

189 Wis. 1

206 N.W. 849

AGNEW ET AL.

v.HOTCHKISS ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1926.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by W. S. Agnew and others against W. O. Hotchkiss and others for injunction. From an order denying relief, plaintiffs appeal. Affirmed.

Action by plaintiffs as citizens and taxpayers of the towns of Harmony and Milton in Rock county to enjoin the defendants, as the highway commission of Wisconsin, from changing the route of state trunk highway No. 26 so as to pass through the village of Milton instead of through the village of Milton Junction as originally laid out. The highway commission in conjunction with the legislative committee of 1923 had already made the change pursuant to paragraph (e), subsection 7, of section 84.02, Stats. 1923.

The specific prayer of the complaint, so far as the issue before the court is concerned, is:

“That the defendants, the highway commission, may be enjoined from further marking and developing and improving the newly proposed change in the state trunk highway No. 26, as aforesaid, and that the defendants, the highway commission, be required to re-mark, re-establish and improve state trunk highway No. 26 as the same was originally laid out and established, to wit, through Milton Junction as aforesaid.”

The complaint, among other things, alleges that a vote for $1,500,000 of bonds in aid of highways in Rock county was carried; that it was carried on the strength of the highway system remaining substantially as it then existed; that plaintiffs' properties are subject to such bond issue tax; that in 1921 after due hearing the state highway commission and the special legislative committee refused to make the change now made, and that such action was final; that in making the change complained of no notice was given plaintiffs or persons interested in the matter of the proposed change; and that as a result of the change plaintiffs suffer loss to their property and business by reason of tourist travel being diverted from them.

The above are the principal allegations of the complaint set out in the complaint with due legal particularity.

The defendants entered a general demurrer, which was sustained, and the plaintiffs appealed.Hall, Baker & Hall, of Madison, for appellants.

H. L. Ekern, Atty. Gen., and Franklin E. Bump, Asst. Atty. Gen., for respondents.

VINJE, C. J. (after stating the facts as above).

[1][2][3][4] The opinion of the trial court so aptly and concisely disposes of the main issues that we adopt it as our own. It says:

“ ‘Highways are only to be laid out when the public good will thereby be promoted. Private considerations or inducements cannot rightly enter into the question in any degrees.’ State ex rel. Dosch v. Ryan, 127 Wis. 599, 601, 106 N. W. 1093. It is immaterial whether such inducements be the building of bridges or the voting of bonds by persons who are interested in the location or improvement of a particular road. The controlling factor must always be the good of the general public and not the convenience or financial gain of the people who live along any particular highway.

The test which the Legislature has imposed is ‘that the public welfare * * * be promoted or public travel be benefited by a change in the route’ of such trunk highway. Section 84.02 (1) of the Statutes. The Legislature empowered the highway commission and the special legislative committee ‘to alter or discontinue...