Peterson v. Board of Sup'Rs, No. 31023.

CourtSupreme Court of Minnesota (US)
Writing for the CourtHolt
Citation199 Minn. 455,272 N.W. 391
Docket NumberNo. 31023.
Decision Date02 April 1937
272 N.W. 391
199 Minn. 455
No. 31023.
Supreme Court of Minnesota.
April 2, 1937.

[272 N.W. 392]

[199 Minn. 456]

Appeal from District Court, Chisago County; A. P. Stolberg, Judge.

Action by Ernest E. Peterson against the Board of Supervisors of the Town of Chisago Lake. The action of the town board in laying out a town road through Ernest E. Peterson's farm was sustained, and from an order denying a new trial, Ernest E. Peterson appeals.


A. M. Bullis, of North Branch, for appellant.

S. Bernhard Wennerberg, of Center City, for respondent.

HOLT, Justice.

The town board of the town of Chisago Lake laid out a town road through the farm of appellant and others in the town. He appealed to the district court. The action of the town board was sustained, and he appeals from the order denying a new trial.

Appellant owns the southeast quarter of section 14, township 34, range 20, Chisago county, this state, except 1½-acre in the southwest corner thereof, owned by a school district. On the west side of the farm is the Center City-Almelund highway. For many years a road called the Taylors Falls-Furuby road has existed, running east from the Center City-Almelund road on the south line of appellant's farm 208 feet, thence northeasterly to a point 407 feet west of the northeast corner of the southeast quarter of the southeast quarter. On June 6, 1935, a petition to establish a new road over appellant's farm four rods wide on the one-eighth section line, that is, on the line dividing the north two forties from the south two, running east from the Center City-Almelund road on the one-eighth section line not only through said section 14 but also on the same line through section 13 until a short distance past the line dividing the east half from the west half of the southeast quarter of the southeast quarter thereof, thence southeasterly until it crosses the Taylors Falls-Furuby road. The petition also asked for the vacation of the latter road where it deviates from the new road to be established. The hearing was set for June 18, 1935, at

199 Minn. 457

2 o'clock p. m. at the west end of the proposed road where it was to join the Center City-Almelund road. The town board and clerk met with some 20 or 30 interested parties, among whom were appellant and his attorney. The town board walked over and examined the proposed road and heard those who wished to be heard. Appellant is almost totally deaf; but his attorney spoke for him, and stated that he appeared specially to object to the jurisdiction of the board on the grounds that the petition was not proper and notice had not been served on appellant. The petition was granted, and appellant duly appealed to the district court. The court made findings affirming the action of the town board in laying out the new and vacating the old road.

The counsel for appellant conveniently groups his attack upon the order on three propositions, viz.: (1) The evidence does not support the finding that appellant waived service of notice of the hearing. (2) The town board was without power to entertain this petition, having in effect denied

272 N.W. 393

another petition for the same road petitioned for within a month previous to granting this. (3) The town board was without jurisdiction to entertain proceedings involving a designated county aid road.

The court found that the notice of hearing was not served on appellant. It appears that he lives on this farm, but was away from home on the day the notice was served. A relative of appellant, Vernon Johnson, operates the farm for appellant and occupies a dwelling thereon, a short distance from the home of appellant, and the notice of hearing was served, on June 6, 1935, by leaving a copy with the wife of Vernon Johnson at the house of his usual abode. Appellant received word of this service the same evening. The court then found: "That at the time and place designated in said notice of hearing said board met to consider and act upon said petition and at said time and place appellant appeared with his attorney, A. M. Bullis; appellant stated that he appeared specially and objected to the granting of the petition on the ground that jurisdiction had not been obtained because of a defect in the notice and that no service of

199 Minn. 458

the same had been made on appellant; that subsequent to such special appearance and before respondent had taken any action upon the objections made on said special appearance, appellant by his attorney presented a plat to said board of his premises and stated and presented his reasons why on the merits the petition should not be granted." We think this finding is well sustained by the evidence. After making his objection to the jurisdiction, the attorney was asked by the board if he had any other objections, and answered: "Yes. Mr. Peterson is very much opposed to the road." The attorney then went to his car, produced a plat of appellant's farm, and pointed out in what respects the road was a detriment and a damage to this property; he called attention to the pasture, the various fields, and the fences. One witness testified that the attorney for appellant occupied more time at the hearing than any of the other property owners affected by the road petitioned for. The petition covered a subject-matter within the jurisdiction of the town board. But jurisdiction to lay the road over appellant's farm could be had only by service of notice of hearing or by voluntary appearance and participating in the hearing. The court was of the opinion that, even though there had been good service made on the occupant Vernon Johnson, it was not effective as to appellant, who was both the owner and also an occupant of the farm. Had appellant not appeared at all or had he merely made his special appearance, the order laying out the new and vacating the old road, so far as concerns appellant's farm, would have been a nullity. But, when he or his attorney went into the merits of the road and discussed with the board the injury or damage resulting to the farm, he waived the service of notice. The notice is only for the purpose of enabling the property owner to be present at the hearing and protect his interest. It should not take much to waive the service of the notice where it appears that he got knowledge thereof the day it was intended he should have been served, that he had ample time to secure an attorney to be present with him, and to prepare a plat for the purpose of convincing the board of the detrimental

199 Minn. 459

effect of the proposed road upon his rights. This road affected at least five other farms. If appellant insisted on the technical objection that he had not been served, he ought not to have gone into the merits or demerits of the road. Had the town board then understood that appellant insisted on being served before submitting the petition on the merits, an adjournment could then have been ordered until such time as good service could have been made of the notice upon appellant. It is not likely that the town board would have laid out any part of the petitioned road unless or until that part traversing appellant's land was included. The town board is not a court. It is not required to rule upon objections or special appearances. It does not swear witnesses. In matters of laying out roads it functions as a legislative body, it examines the locality in question, and discusses with interested persons whether or not public convenience and welfare requires the road petitioned for. We think, therefore, the strict rules pertaining to a waiver in a court proceeding are not applicable. It may not be quite accurate to speak of the service of notice of the hearing of a petition to lay a road over an owner's land as a right. But, however designated, notice may be waived. Kieckenapp v. Town of Wheeling, 64 Minn. 547, 67 N.W. 662; Anderson v. Town of Decoria, 74 Minn. 339, 77 N.W. 229; Hurst v. Town of Martinsburg, 80 Minn. 40, 82 N.W. 1099; Bruns v. Town of Nicollet, 181 Minn. 192, 231 N.W. 924. Appellant relies on McCauley v. Town of McCauleyville, 111 Minn. 423, 127 N.W. 190, 20 Ann.Cas. 828, but that is not in point; for there the owner did not appear, she

272 N.W. 394

merely filed her protest against the laying of the road, on the ground that the board was without jurisdiction. Here appellant was represented at the hearing by an able attorney, and it must be assumed that he voluntarily waived the notice — a known right to him — when he went into the merits of the road and its effect upon the land. It cannot be assumed that appellant's attorney was ignorant of appellant's right and did not voluntarily go into the merits of the petition.

Subdivision 8 of section 2583, Mason's Minn.St.1927, provides: "The determination of a town board refusing to establish, alter or vacate any road shall be final, unless appealed from, for one

199 Minn. 460

year from the filing of its order; and no petition for...

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