State ex rel. Taylor v. Town Bd. of Supervisors of Town of Delafield

• Decision Date: 20 September 1887
• Citation: 69 Wis. 264,34 N.W. 123
• Parties: STATE EX REL. TAYLOR v. TOWN BOARD OF SUPERVISORS OF TOWN OF DELAFIELD.
• Court: Wisconsin Supreme Court

69 Wis. 264

34 N.W. 123

STATE EX REL. TAYLOR

v.TOWN BOARD OF SUPERVISORS OF TOWN OF DELAFIELD.

Supreme Court of Wisconsin.

September 20, 1887.

Appeal from circuit court, Waukesha county.

It appears from the record that January 25, 1886, the circuit court issued an alternative writ of mandamus against the defendants, commanding them to immediately proceed to lay out the highway described, as commencing at a point where the town road, running westerly through the southern part of section 6 in the town of Pewaukee, in said county of Waukesha, intersects the town line between the towns of Pewaukee and Delafield, and running thence on the most favorable ground across the land of A. A. Aiken, in section 1 of said town of Delafield, to intersect, on the north side of the Chicago, Milwaukee & St. Paul Railway, the road running north and south through section 1 of said town on the west side of said A. A. Aiken's land, at some point as near the said railroad as practicable, or show cause to the contrary on a day named. The defendants thereupon made return to said writ, to the effect that there was no point where the town road running west through the southern part of said section 6 intersected the town line between said towns; that Pewaukee lay contiguous to Delafield on the east, the west boundary line of Pewaukee coinciding with the east boundary line of Delafield; that the said town road, running through the southern part of said section 6, had its western terminus at a point more than 40 rods east of the boundary line between said towns; that a road laid out across the land of A. A. Aiken on section 1 of Delafield, to intersect, on the north side of the said railway, the town road running north and south through section 1 of said town, on the west side of A. A. Aiken's land, would not connect at its easterly end with any highway whatever; that a road laid out to connect the said north and south road in section 1 of the town of Delafield, with the said town road in the southern part of said section 6, would necessarily extend into each of said towns. February 16, 1886, the relator moved the court to dismiss said return for frivolousness, and, upon the hearing of said motion, the same was denied with $10 costs; and the plaintiff was thereupon allowed by the court 20 days within which to answer said return. February 23, 1886, the relator put in a reply to said return. Upon the hearing of such issues the relator entered a general objection to any evidence under the return, and filed a formal motion in writing for a peremptory writ of mandamus, upon which motion the court made an order, July 23, 1886, reciting that “the relator demurred to said return ore tenus, upon the ground that such return does not set forth any facts constituting an excuse for not laying out said highway, which demurrer was, and is hereby sustained,” and thereupon ordered the peremptory writ; and that the relator recover his costs and disbursements in the matter to be taxed. August 13, 1886, that peremptory writ was...