Bay Land & Imp. Co. v. Town of Washburn

• Decision Date: 09 April 1891
• Citation: 48 N.W. 492,79 Wis. 423
• Parties: BAY LAND & IMP. CO. ET AL. v. TOWN OF WASHBURN ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 423

48 N.W. 492

BAY LAND & IMP. CO. ET AL.

v.TOWN OF WASHBURN ET AL.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Bayfield county.

This action was commenced on or about October 10, 1890, by the plaintiffs, as residents and owners of taxable property in the defendant town, and the complaint alleges, in effect, that in May, 1890, the highway tax and moneys in the town were exhausted; that since that date the town had expended $7,739.75 on highways; that on or about September 2, 1890, an order was unlawfully made and signed by two of the supervisors of the town, laying out a highway a distance of about 12 miles; that contracts had been awarded for the construction of portions of such highway to the amount of $5,656; that the contractor had entered upon the performance of and was then prosecuting the work; that no tax had been voted by the electors of the town for the construction of the road or otherwise levied or raised therefor; nor had any such expenditure been authorized in any manner; that the supervisors of the town threatened to complete the work, and that the completion of the work already let by them would impose on the tax-payers of the town an unlawful indebtedness of $5,656; that the entire cost of such construction would be $25,000; that the proceedings for laying out the highway were void; that no legal order was made laying out such highway, or awarding damages to the unknown owners of land affected thereby; that no accurate survey thereof had been made; that the description of the same was so indefinite that it could not be located; that the supervisors threatened to consummate the work, and thereby misappropriate the funds of the town; that, unless restrained, they would do so, to the irreparable injury of the plaintiffs and other tax-payers; and prayed that the supervisors and contractors be enjoined from prosecuting the work, and from auditing bills or issuing any orders on account of such work. Upon that complaint the plaintiffs procured from a circuit court commissioner a temporary injunction, October 10, 1890. Upon an answer and affidavits and an order to show cause, and upon hearing the attorneys for the respective parties, the court, October 20, 1890, ordered that said injunction “be dissolved and vacated, with $10 costs of motion, but without prejudice to a new application.” From that order the plaintiffs bring this appeal.Lamoreux, Gleason, Shea & Wright, for appellants.

A. M....