Fuller v. Town Bd. of Town of Madison

• Decision Date: 03 May 1927
• Parties: FULLER v. TOWN BOARD OF TOWN OF MADISON ET AL.
• Court: Wisconsin Supreme Court

193 Wis. 549

214 N.W. 324

FULLER

v.TOWN BOARD OF TOWN OF MADISON ET AL.

Supreme Court of Wisconsin.

May 3, 1927.

Appeal from Circuit Court, Dane County; August C. Hoppmann, Judge.

Action by Jessica H. Fuller against the Town Board of the Town of Madison and others for an injunction. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions.--[By Editorial Staff.]Hill, Thomann & Beckwith, of Madison, for appellants.

Schubring, Ryan, Clarke & Petersen, of Madison, for respondent.

OWEN, J.

It appears that Jessica H. Fuller platted a tract of land in the town of Madison into lots and blocks; said plat being termed “Fuller's Woods.” It was her purpose to make the land thus platted desirable for residential purposes. To this end, she inserted in all deeds of conveyances of various parcels sold by her certain restrictive covenants, imposing limitations upon the uses to which the premises may be devoted, among which is to be found the covenant that “said real estate shall be used exclusively for private dwelling purposes.” During the month of June, 1925, the town board of the town of Madison laid out a highway in said town. Said highway, as so laid out, extended over and across lot 11, in block 3, of the plat of Fuller's Woods. It did not extend across any other land in said plat. The town board made an award of damages to the owner of said lot 11. It also assessed the damages which all other owners of lots in said plat would sustain by reason of a violation of such restrictive covenants resulting from devoting said lot 11 to the purposes of a highway, except that no award of damages was made to A. J. Marschall, who was the owner of lot 12, in block 2, of said plat.

Section 80.07 of the 1925 Statutes provides that whenever the supervisors of the town shall lay out any highway they shall make and sign an order therefor, incorporating therein a description of the highway so laid out, causing an accurate survey thereof to be made when necessary. It is provided that such order shall be filed and recorded in the office of the town clerk, together with the award of damages required by section 80.09. Section 80.09 provides that the damages sustained by any person through whose land any highway shall be laid out, widened or altered, may be ascertained by agreement between the supervisors and such owner. If such agreement cannot be obtained, the supervisors shall be required to assess the damages which such owner will sustain by reason of the laying out of such highway through his lands, and make an award in writing specifying therein the sum awarded to said owners for their respective damages. Said award shall be signed by said 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 lands across which said highway extends renders the proceedings laying out the highway void, and any person may challenge the validity of the proceedings. Jessica H. Fuller brings this action to restrain the town board from entering upon said lot 11, in said block 3, for the purpose of opening up or establishing a road across said block 3, on the ground that the proceedings laying out said highway across said lot are void for the reason that no damages were assessed or awarded to A. J. Marschall, the owner of lot 12, in block 2, as aforesaid. From the judgment of the circuit court perpetually enjoining and restraining defendants from opening up said highway, the defendants bring this appeal.

That the owner of each lot in the plat had a property right in each and every other lot in the plat by virtue of the restrictive covenants referred to is well established. Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701;Roberts v. Gerber, 187 Wis. 282, 202 N. W. 701;Ward v. Prospect Manor Corporation, 188 Wis. 534, 206 N. W. 856, 46 A. L. R. 364. There is a division of authority in this country as to whether such covenants constitute property for which compensation must be made. It has been held that under such circumstances compensation must be made. Allen v. City of Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890;Flynn v. New York, etc., Ry. Co., 218 N. Y. 140, 112 N. E. 913, Ann. Cas. 1918B, 588. This view was apparently shared in City of...