Grinley v. Town of Eau Galle
| Decision Date | 04 December 1956 |
| Citation | 79 N.W.2d 797,274 Wis. 177 |
| Parties | Gilbert GRINLEY et al., Appellants, v. TOWN OF EAU GALLE, Respondent. |
| Court | Wisconsin Supreme Court |
Doar & Knowles, New Richmond, for appellants.
Lawrence P. Gehrty, Robert A. Forsythe, Hudson, for respondent.
Appellants' first contention is that the court did not instruct the jury adequately, and particularly, that the court erred in failing to charge (1) that under sec. 80.09 Stats., an oral agreement fixing or waiving damages for the construction of a highway over plaintiffs' land is not binding where not reduced to writing, signed by the landowners and filed in the town clerk's office, and (2) that the jury might take the value of the materials removed from the land into consideration in determining the damages.
The record does not disclose that such instructions were requested by the plaintiffs. Therefore error cannot now be predicated on their omission. Where instructions are incomplete, and do not cover a point that ought to be covered, this court will not reverse unless a timely request for appropriate instructions has been made to the trial court. Madison Trust Co. v. Helleckson, 216 Wis. 443, 456, 257 N.W. 691, 96 A.L.R. 992; Jorgenson v. Hillestad, 250 Wis. 592, 599, 27 N.W.2d 709; Throm v. Koepke Sand & Gravel Co., 260 Wis. 479, 483, 51 N.W.2d 49.
Appellants argue that a landowner can release his claim for damages resulting from road construction on his land only by an instrument in writing, and cite sec. 80.09, Stats. and McKee v. Hull, 69 Wis. 657, 35 N.W. 49. Since this proposition was not presented to the trial court either by request for an appropriate instruction to the jury or by motion after verdict, it is not properly before us on appeal. The same is true of appellants' further contention that in view of sec. 240.06, Stats., a municipality cannot acquire land for road purposes without an instrument in writing or by operation of law.
Next, it is contended that since the town's answer admitted the taking of approximately three acres of plaintiffs' farm and alleged that the town was ready and willing to pay fair compensation for such acreage, the court erred in the following portion of its instructions to the jury 'The town board of the Town of Eau Galle claims that they did all the work with the agreement of the Grinleys and that they agreed to waive compensation for the land and material taken because of the benefit they derived in the change in the...
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