McCauley v. Town of McCauleyville
| Decision Date | 15 July 1910 |
| Docket Number | 16,628 - (213) |
| Citation | 127 N.W. 190,111 Minn. 423 |
| Parties | CARRIE W. McCAULEY v. TOWN OF McCAULEYVILLE |
| Court | Minnesota Supreme Court |
Carrie W. McCauley appealed to the district court for Wilkin county from the order of the board of supervisors of the Town of McCauleyville establishing a public cartway over part of plaintiff's land. The appeal was heard before Flaherty J., who ordered the proceedings of the board of supervisors vacated so far as they affected plaintiff. From an order denying defendant's motion for a new trial, it appealed. Affirmed.
Highway -- service of notice of hearing not waived -- jurisdiction.
The board of supervisors of the appellant town made its order purporting to lay out a road over the respondent's farm, of which she was in the actual possession and control. She did not reside thereon, but in a village near by. Notice of the time and place of hearing on the petition for the road was not personally served upon her. She filed a protest against the laying out of the road, on the ground that the board was without jurisdiction so to do. Held, that she was an occupant of the farm, within the meaning of section 1172, R.L. 1905, and, notice not having been served upon her, the board did not have jurisdiction to lay the road over her farm, and, further, that the filing of the protest did not waive the defect.
Lewis E. Jones, for appellant.
A. E. Boyesen and Wolfe & Schneller, for respondent.
On August 5, 1909, the board of supervisors of the town of McCauleyville made its order purporting to lay out a public cartway or road, from which the respondent, an owner of land over which the road was attempted to be laid, appealed to the district court of the county of Wilkin, on the ground, with others, that the board was without jurisdiction in the premises. The trial court reversed the order of the board, and dismissed the proceedings as to the respondent. The town appealed from an order denying its motion for a new trial.
The only question presented by the record is whether the board had jurisdiction to make the order laying the road. A determination of the question depends upon the answer to be made to the questions: (a) Did the board acquire jurisdiction in the premises? (b) If not, did the respondent appear on the hearing of the petition, and thereby waive the defects in the proceedings as to her?
The evidence relevant to these questions was sufficient to sustain a finding by the trial court of the facts following: The respondent, Mrs. McCauley, owned a quarter section of land over which the road was attempted to be laid. There were a barn and some pasture fences on the premises, but no dwelling house or other structure. The land was seeded to timothy, except thirty six acres in one corner, upon which there was a crop of flax. She employed a man named Gagnon to seed and harvest the flax at so much an acre. She resided in the vicinity of the land in the village of McCauleyville, and was temporarily absent from the state when the proceedings to establish the road were taken. The notice of hearing on the road petition was served on Gagnon personally, and a copy of the same was mailed to respondent, which she received at The Dalles, Oregon. Three days before the day set for the hearing on the petition, she filed, by her attorney, a protest against the laying of the road, on the ground, among others, that the board was without jurisdiction; notice to all of the landowners not having been given as required by law. The protest also stated that the road was neither necessary nor of public utility sufficient to warrant the expense attending its establishment. On the hearing of the petition, Gagnon, assuming to represent the respondent, appeared on her behalf and took part in the proceedings. He was not authorized to so appear for and represent her.
The evidence to support a finding of the foregoing facts is practically undisputed, except the last one stated. Whether Gagnon was authorized to represent her is, under the evidence, a debatable question, and the appellant here urges that the evidence shows that he was so authorized. Upon the evidence, we are of the opinion that it is sufficient to sustain the finding. The trial court upon these facts held that the respondent was an occupant of her land, within the provision of R.L. 1905, § 1172, requiring that the order fixing the time and place for the hearing on the road petition must be personally served upon each occupant of the land through which the road will pass; that no notice was personally served on her; that she did not waive such service, and therefore...
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