Smart v. Hart
| Decision Date | 07 January 1890 |
| Citation | 75 Wis. 471,44 N.W. 514 |
| Parties | SMART v. HART ET AL., SUPERVISORS, ETC. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.
Rev. St. Wis. 1878, § 1263, provides that no public highway shall be laid out through or upon any “building or fixture, or through or upon the yard or inclosure necessary to the use or enjoyment thereof, without the consent of the owner.”D. H. Sumner, for appellants.
Alexander Cook and Hugh Ryan, for respondent.
This is an action brought by the respondent to restrain the appellants, the supervisors of the town of Waukesha, and commissioners of the village of Waukesha, from opening a highway, laid out by them, part of which is in said town of Waukesha, and is laid across lands belonging to the plaintiff, and a portion of which highway so laid out includes within its bounds a part of the fences, buildings, fixtures, and inclosure of the plaintiff about his dwelling-house in said town. The injunction prayed for and granted by the circuit court restrains the defendants “from removing, or attempting to remove, the fence inclosing the house lot, yard or inclosure, or any part thereof; from opening said highway through or upon said inclosure, or any part thereof, or through or upon said buildings, or any of them; and from taking any steps of any kind to open said highway through or upon said inclosure or buildings, or to interfere with plaintiff's use and enjoyment thereof.” The defendants answered, admitting the fact of the laying out of the highway, and their intent to open the same to public use, and they alleged “that said highway is not laid out through or upon any orchard or garden, or any building or fixture used for the purpose of trade or manufacture, when the damage caused thereby to such orchard, garden, building, or fixture, exclusive of the damage to the land, shall exceed seventy-five dollars, or through or upon any building, fixture, yard, or inclosure used for educational or charitable purposes; or through or upon any other building or fixture, or through or upon the yard or inclosure, necessary to the use or enjoyment thereof, or through any cemetery.” The case was tried by the court, and the court found the following facts: “ First, the laying out of said highway;” and, second, “that said highway so laid out as aforesaid, is laid out over, through and upon, certain buildings and fixtures of the plaintiff, to-wit, his cow-stable, wagonshed, and chicken-house, and through and upon the yard or inclosure of the plaintiff,...
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Great Eastern Cas. Co v. Blackwelder
...definition of the term. The books are, however, full of cases which supply the answer to the latter question. In Smart v. Hart, 75 Wis. 471, 44 N. W. 514, and Gillock v. People, 171 111. 307, 49 N. E. 712, it was held that a "chicken house" was a building. In Whitmore y. Wenloek, 44 E. C. L......
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Great Eastern Cas. Co. v. Blackwelder
...49 N.E. 712, it was held that a "chicken house" was a building. In Whitmore v. Wenlock, 44 E. C. L. 15, 134 Eng. Reprints, 460, and in Smart v. Hart, supra, a "cowhouse" or stable was declared to be a building. A "dugout," 13 feet long, 10 feet wide, and 7 feet deep, covered with a roof, wa......
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Florsheim v. Patterson
...had denied the application, but on appeal to commissioners, the decision of the board was reversed and the road laid out. In Smart v. Hart, 75 Wis. 471, 44 N. W. 514, the supervisors therein were restrained from opening a highway laid out by them. Those cases are not authority for the bring......
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Le Blond v. Town of Peshtigo
...the decisions of this court in Flanders v. Town of Wood, 24 Wis. 572,Church v. School District, 55 Wis. 399, 13 N. W. 272,Smart v. Hart, 75 Wis. 471, 44 N. W. 514,Ruhland v. Jones, 55 Wis. 673, 13 N. W. 689,De Pauw v. Oxley, 122 Wis. 656, 100 N. W. 1028, 13 L. R. A. (N. S.) 173, and McCord ......