Ruhland v. Green

• Decision Date: 31 October 1882
• Citation: 55 Wis. 664,13 N.W. 877
• Parties: RUHLAND AND ANOTHER v. SUP'RS OF HAZEL GREEn.
• Court: Wisconsin Supreme Court

55 Wis. 664

13 N.W. 877

RUHLAND AND ANOTHER

v.SUP'RS OF HAZEL GREEn.

Supreme Court of Wisconsin.

Filed October 31, 1882.

Appeal from the circuit court, Grant county.George Clemonson, for appellants, Benedict Ruhland and another.

Carter, Carter & Cleary, for respondents, Supervisors of the town of Hazel Green.

TAYLOR, J.

This is a proceeding by common-law writ of certiorari to review the proceedings of the board of supervisors of said town of Hazel Green in laying out a highway through the lands of the plaintiffs. The writ was issued by the circuit court of Grant county, and upon the return to the writ in that court judgment was entered affirming the proceedings of the town board laying out said highway, and from that judgment the plaintiffs appeal to this court. The record of the proceedings shows that a proper petition for said highway was presented to said board, signed by the requisite number of freeholders of said town, on the sixth day of October, 1880; that upon reviewing such petition the supervisors gave notice that they would meet to decide upon such petition on the sixteenth day of October, 1880, at 10 oclock A. M., at a place mentioned in said notice; that at the time fixed they met at the place mentioned and then adjourned until the twenty-seventh of October, 1880, at 1 P. M., to meet at the town clerk's office in said town, when and where they would meet to decide upon such application; that on said last-mentioned day the supervisors met at the place fixed in said notice, and again adjourned the hearing of said petition until the first day of December, 1880, at 2 o'clock P. M.; and that on the said first day of December the supervisors again met at the town clerk's office, and then made an order laying out said highway. The record further shows that one of the petitioners, and all the persons through whose lands the proposed highway would pass if laid out, appeared before the said board of supervisors, on the twenty-seventh day of October, 1880, at the time and place fixed for the meeting of said board, to decide upon said petition, and signed the following written stipulation:

“Whereas, Adam Huska has applied to the board of supervisors of the town of Hazel Green to lay out a certain highway in said town described in a certain petition now on file in the office of the town clerk of said town, and which matter of the laying out of said highway is now pending before said board and undetermined; and whereas, Michael Konkle, George Lebben, Bernard Fulmer, Benedict Ruhland, and Nicholas Johnson, the parties through whose land the said proposed highway runs, have appeared before said town board and objected to the laying out of said highway; and whereas, a certain order was made heretofore by a previous town board laying out a highway over the same ground, and was appealed from to commissioners as provided by law, which commissioners reversed the said order laying out said highway, and the proceedings respecting said order laying out said highway, and said order of said commissioners reversing the same, were taken up to the circuit court of Grant county, Wisconsin, by writ of certiorari on the petition of said Huska, and is pending and undetermined in said court; and whereas, both parties are desirous of having said matter heard and determined in said court before the said town board decides upon the said pending application of said Huska: Now, therefore, it is hereby agreed by and between said Adam Huska on the one part, and said contestants on the other, that the matter of laying out said highway may be adjourned by said town board until the first day of December, 1880, to enable the said matter to be heard and decided by said circuit court, and that upon said adjourned day the said town board may proceed and decide upon the said application in the same manner and with the same effect in all respects, and shall be so considered and treated in all courts and places, as though the determination thereof were made and determined and filed to-day, and such order shall be dated as of the day when made and all parties hereto agree that if the said board shall then lay out or refuse to lay out said highway, either party may appeal therefrom, in the same way and with the same effect as though such order were made to-day, within 30 days after such adjourned day, or the day of making or refusing to make such order.”

Upon this record it is alleged by the learned counsel for the appellants that the board of supervisors, by their adjournment of the hearing of said petition from October 27 to December 1, 1880, lost all jurisdiction of the subject-matter of said petition, and that their subsequent order made on said first day of December, laying out said highway, is void. On the other side, it is alleged by the learned counsel for the respondents that these plaintiffs are estopped from questioning the authority of the board to make the order by having consented to the adjournment. This court has repeatedly held that the power to lay out, vacate, or alter a highway by the board of supervisors of a town is strictly a statutory proceeding, and that such proceedings are void in every case where the requirements of the statute are not substantially complied with. Williams v. Holmes, 2 Wis. 129;Austin v. Allen, 6 Wis. 134;Bobb v. Carver, 7 Wis. 124;Roehrborn v. Schmidt, 16 Wis. 519;Isham v. Smith, 21 Wis. 32;State v. Langer, 29 Wis. 68;Damp v. Town of Dane, 29 Wis. 419;State v. Castle, 44 Wis. 670.

It seems to us very clear that these decisions settle the question beyond dispute, in this court, that the supervisors can only acquire jurisdiction of the proceeding to lay out a highway by a strict compliance with the statutory direction, and that no consent of the applicants for the highway, or the persons through whose lands the highway is laid out, can validate the proceedings, if the board has failed to comply with such statutory requirements. A landowner, through whose land the highway runs, may, by express agreement, waive his right to compensation for the land taken for the highway, and he may, undoubtedly, by express stipulation waive his right to personal notice of the time and place of the meeting of the board to decide upon the petition, because these things are matters which are personal to him and do not affect the interest of the public generally. But that a land-owner cannot waive any step prescribed by the statute in which the public generally is interested, is, we think, conclusively settled by the cases of...