Lawler v. Brennan
| Decision Date | 20 June 1912 |
| Citation | 136 N.W. 1058,150 Wis. 115 |
| Parties | LAWLER v. BRENNAN ET AL. |
| Court | Wisconsin Supreme Court |
On motion for rehearing. Trial judgment reversed, and action remanded, with directions.
For former opinion, see 134 N. W. 154.
This is an action in equity brought by the owner of land bordering on the eastern end of Lake Geneva to enjoin the town supervisors of the town of Linn, in Walworth county, from hindering or preventing him from constructing a channel, or covered waterway, under and through a highway of the town, and thus connecting the waters of the lake with the plaintiff's land on the east side of the highway. The first and fundamental question in the case is as to the correct location of the highway in question. It is admitted that it skirts the lake in front of the plaintiff's property, and the defendant supervisors claim that it extends to the eastern edge of the lake at ordinary high water, while the plaintiff claims, and the trial court found, that there is a strip of land or beach from 25 to 35 feet in width owned by the plaintiff between the west line of the highway and the eastern edge of the lake. It is admitted that, if there be any land between the west line of the highway and the lake, it belongs to the plaintiff.
The plaintiff makes three claims, viz.: (1) That he has the right to construct the channel or tunnel under a written permit alleged to have been given by the three supervisors of the town of Linn to one Dennison, plaintiff's predecessor in title, July 22, 1901. (2) That, inasmuch as the highway runs through his property, leaving part of his land on one side and part on the other, he has a common-law right to dig a ditch or channel across the highway and connect the two parcels by a waterway, building and maintaining such bridges as may be necessary to provide for public travel. (3) That he has a right to construct such a waterway under section 1346, Stats. 1898, which provides that “any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway.”
The plaintiff desired to erect an icehouse on his land east of the highway, and wished to construct the channel from the lake across the highway for the purpose of floating ice from the lake to his icehouse. Before bringing the action, he presented to the defendant supervisors a communication claiming the right to construct the way under the Dennison permit, and accompanied the communication with designs and specifications for two bridges across the traveled part of the highway, either of which he offered to erect, as the supervisors might deem best. The supervisors refused even to consider the request, and the plaintiff thereupon commenced this action and obtained a preliminary injunctional order from a court commissioner restraining the defendants from interfering with the construction of the channel, and commenced work thereon. Upon making answer to the complaint, the defendants obtained an order to show cause why the plaintiff should not be restrained from proceeding with the work until the decision of the case on the merits, together with a temporary restraining order. By stipulation of the parties the status quo was allowed to remain during the pendency of the action. There was a contest upon the trial between surveyors as to the correct location of the highway, which it appears was originally laid in 1839. The court found that there was in fact 25 feet of land belonging to the plaintiff between the highway and the edge of the lake, and held that the plaintiff was entitled to construct a tunnel or subway under the highway according to plans and specifications attached to the judgment and made part thereof.
The so-called tunnel or subway was, in effect, a bridge 31 feet wide over a water channel 14 feet in width, extending across the highway. The bridge elevated the grade of the prepared way 2 feet, and the plaintiff was required to grade the highway 100 feet in each direction so as to bring it up to the proposed level of the bridge. The supervisors were enjoined from interfering with the plaintiff in the construction of the channel or tunnel, and from this judgment the defendants appeal.
Charles S. French, Simmons & Walker, and Thomas M. Kearney, for appellants.
Burr W. Jones and J. L. O'Connor, for respondent.
WINSLOW, C. J. (after stating the facts as above).
The reargument which has been had in this case has cast new light on the case, at least to the mind of the writer of this opinion, and especially is this true with regard to the question of the location of the highway.
[1] All the members of the court were convinced on the first hearing that no rights could be claimed under the so-called Dennison permit, and they are all of the same opinion now. There may be more than one good reason which can be given for this conclusion, but there is certainly one which is entirely sufficient, and that reason is that the permit was never granted at a meeting of the town board. The testimony shows without dispute that the members of the board signed it individually at different times and places, and that no action ever was taken at any meeting of the board, either regular or special. It is well settled that, where an act must be done by a board, the action must be taken at a meeting at which all are present, or of which all have had proper notice, in order to make the action binding. McNolty v. School Directors, 102 Wis. 261, 78 N. W. 439;Lisbon A. L. Co. v. Lake, 134 Wis. 470, 113 N. W. 1099.
[2] As has been said in the statement of facts, the initial and fundamental question in the case is the question of the location of the highway which skirts the eastern end of Lake Geneva and crosses the western end of the plaintiff's premises, which are 400 feet in width from north to south. The highway is frequently called the “beach road” by the witnesses, because it passes along the beach of the lake at only a slight elevation from the surface of the water for a distance of more than half a mile. If the western line of the highway reaches the edge of the lake in front of the plaintiff's premises, he cannot successfully claim the right to construct the waterway and bridge in question, either under common-law principles or the provisions of the “tunnel” statute, because in either case it is necessary that the party claiming the right own property on each side of the highway.
The road in question was four rods in width, and is admitted to have been laid out in 1839. In May of that year a petition for the laying out of a highway, commencing at the village of Geneva and running southerly to the Illinois state line, a distance of more than 6 miles, was presented to the commissioners of Walworth county, and viewers were appointed who reported in October, 1839, in favor of the laying out of a highway pursuant to the petition, and accompanied their report with a map and survey made by a surveyor named Norris, who was also one of the viewers. The map and survey seem to have been accepted by the commissioners in the following January, and ordered to be recorded, and the road was opened. The survey describes simply the center line of the highway and commences at the Illinois state line in the town of Linn at the southwest corner of section 35 in that town, proceeding thence north on the section line between sections 34 and 35 46 chains, it then diverges to the northeast through sections 35 and 26 to the southwest corner of section 24, thence north on the line between sections 23 and 24 a mile, between sections 14 and 13 a mile, and between fractional sections 11 and 12 nearly half a mile to a point 4 chains south of the quarter corner on the west line of section 12. From this point (which is designated by the letter “A” on the accompanying map) it proceeds in a general northeasterly direction around the east end of Lake Geneva, there being a change of course at each of the points marked on the map by the letters A, B, C, D, E, F, G, H, I, and K.
The changes of course at the points C, D, and E are so slight that upon a small map they are not very noticeable, but there is a substantial change at each place. It is quite evident from mere inspection of the map that from the point C to the point F there was a deliberate following of the shore of the lake for some reason. The courses D to E and E to F are north 4 degrees and north 9 degrees 15 minutes west, respectively. There is, however, a narrow strip of land represented as intervening between the highway and the lake. The plaintiff's premises consist of a strip of land 400 feet in width from north to south at the point D; 100 feet thereof being taken off from the south side of the southwest fractional quarter of section 1 and 300 feet thereof from the north side of the northwest fractional quarter of section 12. The survey attached to the map states that the line of the highway terminates “on the beach of Geneva Lake at the confluence of Center street of Geneva village plat with the Racine Road” (the point marked L upon the map). It will be understood that the map herewith given is approximately a correct copy of that part of the map attached to the original survey which relates in any way to the present controversy, but that the letters A, B, C, etc., were not on the original map, but have been added for convenience of reference merely. It appears by the testimony that in or about the year 1873 a considerable change was made in the north part of the highway. All that part lying in section 36 was discontinued and closed up, as well as about 12 or 13 chains in length of the north end of that part which lies in section 1, and the course of the highway was...
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