Huening v. Shenkenberg

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Huening v. Shenkenberg, 208 Wis. 177, 242 N.W. 552 (Wis. 1932)
• Decision Date: 10 May 1932
• Parties: HUENING v. SHENKENBERG ET AL. (VILLAGE OF WATERFORD, INTERVENER).

208 Wis. 177

242 N.W. 552

HUENING

v.SHENKENBERG ET AL. (VILLAGE OF WATERFORD, INTERVENER).

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Circuit Judge.

Action by Frank T. Huening against William Shenkenberg and others, in which the Village of Waterford intervened. From a judgment for plaintiff, defendants and intervener appeal.--[By Editorial Staff.]

Affirmed.

Action commenced April 24, 1930, to recover damages for trespass committed by the individuals who are defendants, while in the employment of the village of Waterford, which is an intervening defendant. Judgment for plaintiff was entered on July 7, 1931, and defendants appealed.Walter J. Mattison, of Milwaukee, for appellants.

Whaley & Paulsen, of Racine, for respondent.

FRITZ, J.

As is conceded in defendants' brief, the question at issue is whether fence posts and trees removed by defendants constituted an obstruction in a street, and the answer to that question depends upon whether a motion, adopted on December 8, 1925, by the village board of Waterford, to “narrow River Street to thirty-eight feet,” legally resulted in the vacation of an eleven foot strip on each side of the sixty foot street so as to cause the eleven foot strip, abutting on plaintiff's land, to revert to him, as the abutting owner, free from the easement of public travel.

[1][2] On a plat recorded in 1845, the street was laid out with a width of sixty feet. It extended for about one hundred seventy feet along the land, which is now owned by plaintiff, and then it ended at a river. It had never been improved for any street purpose by the village, and there was no provision for vehicular traffic to cross the river. Plaintiff contends that, by virtue of section 61.34 (12), Stats., the village board was authorized, by merely its vote, to change the width of the street. That section, so far as here material, provides:

“The village board shall have power, by ordinance, resolution, law or vote: * * *

(12) To lay out, open, change, widen or extend roads, streets, lanes, alleys, sewers, parks, squares or other public grounds, and to grade, improve, repair or discontinue the same or any part thereof, * * * as provided in this act. * * *”

Plaintiff contends that, in so far as the changing of a street by merely narrowing it is concerned, neither that act nor any other provision of the statutes provides for any other manner or procedure than by “ordinance, resolution, law or vote” of the village board.

On the other hand, defendants contend that the narrowing of the street constituted a discontinuance of part of the street, and therefore the procedure prescribed by section 61.38, Stats., had to be followed. That section, so far as here material, provides: “Discontinuance of streets and alleys. The whole or any part of any road, street, slip, pier, lane or alley, in any lawfully incorporated village, may be discontinued by the board of trustees of such village, upon the written petition of the owners of all the frontage of the lots and lands abutting upon the portion thereof sought to be discontinued, and of the owners of more than one-half of the frontage of the lots and lands abutting on that portion of the remainder thereof, which lies within two thousand six hundred and fifty feet from the ends of the portion proposed to be discontinued.” As the action of the village board on December 8, 1925, was not pursuant to any such petition as section 61.38, Stats., requires, the intended change in the width of the street was invalid, if such change constituted a...