Smeaton v. Austin

• Decision Date: 12 April 1892
• Parties: SMEATON ET AL. v. AUSTIN ET AL., TOWN SUPERVISORS.
• Court: Wisconsin Supreme Court

82 Wis. 76

51 N.W. 1090

SMEATON ET AL.

v.AUSTIN ET AL., TOWN SUPERVISORS.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Proceedings by James Smeaton and another against G. O. Austin and others, as supervisors of the town of Waukesha, and Carlos P. Smith and others, as supervisors of the town of Vernon, to recover damages for opening a ditch on plaintiffs' land. Judgment for plaintiffs. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

In 1863 a ditch was dug across the lands of plaintiffs, then owned by their father, for the purpose of draining the lands of one Stillwell. The ditch was dug pursuant to the verdict of a jury rendered in an inquisition held under the provisions of chapter 57, Rev. St. 1858. One Stewart subsequently acquired the lands of Stillwell. Difficulties arose between Stillwell, and subsequently Stewart, upon the one side, and the plaintiffs upon the other, as to the maintenance of the ditch; the plaintiffs frequently filling it up, and Stewart attempting to open it, until May, 1882, when Stewart applied to the supervisors to remove the obstructions, and the supervisors, declaring that such obstructions caused the overflow of an adjoining highway, ordered the overseer of highways of the district to remove the obstructions and open the ditch, which was accordingly done. To prevent such opening the plaintiffs brought their action for a perpetual injunction, which came to this court upon appeal from an order dissolving an interlocutory injunction, and will be found reported as the case of Smeaton v. Martin, 57 Wis. 364, 15 N. W. Rep. 403. The order of dissolution was there affirmed. No application for the appointment of electors to appraise the damages caused by the opening of the ditch, under section 1237, Rev. St., was made until April, 1887. It will be seen that this was after the passage of chapter 46, Laws 1885, which provides for an appeal to the circuit court from the decision of the appraisers; there being no such appeal provided for prior to the passage of that chapter. The supervisors either refusing or neglecting to appoint appraisers, the plaintiffs sued out an alternative writ of mandamus in the Waukesha circuit court for the purpose of compelling the appointment of appraisers. The supervisors made return to the writ, alleging that they had simply removed the obstructions from the old ditch, and therefore that there was no reason for the appointment of appraisers. The issue thus made was tried before a jury, which returned a verdict that the ditch opened in 1882 was not substantially on the line of the old ditch, and was not substantially of the same width and depth. Upon this verdict judgment was entered awarding a peremptory writ of mandamus, and thereupon the supervisors appointed appraisers, who, in April, 1888, made and filed their award, allowing no damages. From this award the plaintiffs appealed under the provisions of chapter 46, Laws 1885, and upon trial of such appeal recovered judgment for $500 damages, from which judgment the supervisors prosecute this appeal.D. H. Sumner, for appellants.

P. H. Carney, ( Bashford, O'Connor & Polleys and J. A. Aylward, of counsel,) for respondents.

WINSLOW, J., ( after stating the facts.)

The first and most serious question presented is whether the plaintiffs are entitled to take any appeal from the award of the appraisers. When the ditch was opened in 1882 the statute gave no appeal, and it was not until the passage of chapter 46, Laws 1885, that an appeal to the circuit court was provided for. It is argued by appellants that when the act...