Gillett v. McGonigal

• Decision Date: 29 September 1891
• Parties: GILLETT ET AL. v. MCGONIGAL.
• Court: Wisconsin Supreme Court

80 Wis. 158

49 N.W. 814

GILLETT ET AL.

v.MCGONIGAL.

Supreme Court of Wisconsin.

Sept. 29, 1891.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge.

Action by J. A. Gillett and J. J. Williams, special administrators of the estate of William W. Gillett, against James McGonigal, to recover for trespassing on land. Verdict and judgment for defendant. Plaintiffs appeal. Reversed.

It appears from the record that this is an action for trespass quare clausum fregit, alleged to have been committed March 28, 1889, commenced in justice's court by the plaintiffs' intestate; that the defendant justified on the ground that the locus in quo was at the time named within the limits of a public highway laid out by the county October 10, 1888; that upon the trial in the circuit court there was evidence to the effect that at the November session of the county board of supervisors for 1887 a resolution was adopted by said board, of which the following is a copy: “Resolved, that the chairman of the county board be and is hereby authorized to fill all vacancies that may occur in the committee on county roads by reason of resignation or other cause, and that said committee be and is hereby authorized to act in all respects in laying out, altering, and discontinuing highways as provided by law, as if acted on by the whole board of supervisors;” that a similar resolution was passed each year previously, back to 1878, and also one for the year 1888; that during the months of August, September, and October, 1888, there was a committee of five in existence, which had been previously appointed by the chairman of the county board, in pursuance to said resolutions; that on or about August 8, 1888, a petition, signed by the requisite number of freeholders, was made to the county board of supervisors for the laying out of a county road along and over the place in question; that September 10, 1888, a notice, signed by that committee, of the time and place of meeting to decide upon the application was duly published; that October 10, 1888, the committee met, according to such notice, at the place named therein, and then and there proceeded to examine, personally, such highway, and did hear all reasons for and against the same, and did then determine orally to grant said petition, and to order said highway to be laid out and established, and also award damages to the respective parties, including eight dollars to said intestate; that said committee thereupon authorized one of their number to draw up the order laying out and establishing such highway, and awarding such damages, and the other four wrote their names...