City of Chippewa Falls v. Hopkins

• Decision Date: 19 March 1901
• Citation: 109 Wis. 611,85 N.W. 553
• Parties: CITY OF CHIPPEWA FALLS v. HOPKINS.
• Court: Wisconsin Supreme Court

109 Wis. 611

85 N.W. 553

CITY OF CHIPPEWA FALLS

v.HOPKINS.

Supreme Court of Wisconsin.

March 19, 1901.

Appeal from circuit court, Chippewa county; James O'Neill, Judge.

Action by the city of Chippewa Falls against Wilson Hopkins. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action in equity, brought by the city to compel the removal of obstructions from an alleged highway and to enjoin any further obstruction thereof. The defendant in his answer denies the existence of any highway at the place in question. The evidence upon the trial showed that the plaintiff is the owner of the N. E. 1/4 of the S. E. 1/4 and the N. W. 1/4 of the S. E. 1/4 of section 7, and that such land is within the limits of the city of Chippewa Falls. The disputed highway runs in a general southwesterly direction through a part of each 40 acres. The following map shows the situation, the line marked “Disputed Highway” being the center line of the alleged highway:

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The claim of the city was that a highway existed on said line by user only for more than 20 years prior to the year 1895. The court found as facts that at the time of the commencement of the action a highway existed in the city of Chippewa Falls, the center line thereof being the line marked upon the plat as “Disputed Highway”; that said highway had been opened, used, and traveled by the general public continuously for more than 20 years before the summer of 1895, and during all that time had been the main traveled highway leading from Chippewa Falls to the village of Barber Mills and the city of Eau Claire; that in 1895 certain officers of the city of Chippewa Falls attempted to change the course of said highway where it crosses the defendant's land, by opening another highway through another part of said land, but that said new highway was opened without defendant's consent and without any proceedings to comply with the law regulating the opening and laying out of highways; that after the opening of said new road, for about 2 years, nearly all the travel was diverted to and passed over said new road, but the old highway first described was never entirely abandoned by the traveling public, and no proceedings were taken to vacate or discontinue the same; that in the year 1897 the defendant fenced in and plowed the said new road or highway, and has kept the same inclosed and plowed ever since, and entirely prevented any use thereof by the public, and denied that the public had any right therein; that in the year 1897 the defendant also erected fences across the said old highway, so as to entirely prevent public travel thereon,and still maintains said fences; that the commencement of this action was duly authorized by the common council of the plaintiff city. As conclusions of law the court found that the pretended alteration of said highway in 1895 was illegal and void, and that the same was never altered, abandoned, or discontinued; that the old highway is still a lawful highway in said city; that the defendant, by obstructing said new road and preventing use thereof, is estopped from claiming that the same constituted a valid alteration of the old highway. Upon these findings judgment was entered for the plaintiff according to the prayer of the complaint, and the defendant appeals.

W. H. Stafford and John P. Wall (H. H. Hayden, of counsel), for appellant.

W. M. Bowe, for respondent.

WINSLOW, J. (after stating the facts).

Many exceptions were taken by the appellant, but there are but four questions which require discussion.

1. Was it shown that the commencement of this action was properly authorized by the common council? The action was commenced by the city attorney, the complaint being verified by the acting mayor. By the charter of the city (chapter 164, Laws 1885), the general control of city affairs, including removal of obstructions from streets, is vested in the common council by the usual provisions. By section 5 of subchapter 4 of the charter it is provided that “the city attorney shall conduct all the law business of the corporation and of all departments thereof, and all other law business in which the city shall be interested, when so directed by the common council.” Prior to the commencement of this action, on March 8, 1898, the following resolution was passed by the common council: “That the city attorney be, and he is hereby, authorized and directed to commence an action against Wilson Hopkins for the removal of an obstruction placed by him across the extension of Greenville street in said city.” It is claimed by appellant that the commencement of an action like the present is included under the head of “other business,” and hence that it must be directed by the common council; that the alleged highway in question is not in any proper sense an “extension” of Greenville street, but that the highway attempted to be opened by the city in 1895, without compliance with the provisions of law, must be considered as an extension of Greenville street...