State ex rel. Smith v. Bd. of Sup'rs

• Decision Date: 15 May 1886
• Citation: 66 Wis. 199,28 N.W. 140
• Parties: STATE EX REL. SMITH v. BOARD OF SUP'RS, ETC., OF THE TOWN OF LEON.
• Court: Wisconsin Supreme Court

66 Wis. 199

28 N.W. 140

STATE EX REL. SMITH

v.BOARD OF SUP'RS, ETC., OF THE TOWN OF LEON.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Monroe county.

Morrow & Masters, for the State.

Dickinson & Graham, for appellants.

COLE, C. J.

It is insisted by the defendants' counsel that the alternative writ in this case should have been quashed because it is not alleged in the relation that the overseer of highways, or some person acting under his direction, entered upon the lands, and constructed the ditch which caused the injury of which the relator complains. It is alleged that the town board of supervisors caused the ditch to be constructed for the purpose of preserving and protecting the public highway. It is said that it is only where the work is done or the improvement made by the overseer himself, or some person acting under his direction, that an aggrieved party can have his damages appraised under the statute. This position we consider wholly untenable. The town board has a general supervision of the highways of the town, and it is one of its duties to give directions for repairing and improving them. Ordinarily the overseer attends to making repairs upon highways, but the character of this improvement was such that the supervisors themselves deemed it best to take charge of the work. It seems to us there can be no doubt that they had ample authority to do so, and if the relator has sustained damages by the work, they may be assessed under sections 1236, 1237, Rev. St. This point was practically so decided in Smith v. Gould, 61 Wis. 31;S. C. 20 N. W. Rep. 369. It would be a most unreasonable construction of the statute to hold that it only applied to a case where the land was entered upon and taken by the overseer, or a person acting under him, and did not apply where the supervisors themselves caused the work to be done.

Another ground relied on for quashing the writ is that neither the relation nor writ sets forth the facts which show that the work done was necessary for the protection of the highway. Why should the writ state these facts? The supervisors constructed the ditch presumably because it was necessary, or deemed to be necessary, in their judgment, for the preservation of the highway. We certainly cannot presume that the supervisors acted unadvisedly in the matter, and made an improvement which was not called for by the condition of the highway; and the mere fact that they caused the work to be done is all that need be stated to show that it was necessary, and that the relator is entitled to the relief he seeks.

It is further insisted that the...