State ex rel. Young v. Maresch

• Decision Date: 27 April 1937
• Citation: 225 Wis. 225,273 N.W. 225
• Parties: STATE ex rel. YOUNG et al. v. MARESCH et al.
• Court: Wisconsin Supreme Court

225 Wis. 225

273 N.W. 225

STATE ex rel. YOUNG et al.

v.MARESCH et al.^*

Supreme Court of Wisconsin.

April 27, 1937.

Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Judge.

Affirmed in part; reversed in part.

In this mandamus action, commenced February 13, 1936, the relators, Jerry Young, Frank Young, and Louis Young, hereafter called the plaintiffs, seek to compel the defendants, William Maresch, August Braatz, and B. G. Glasnap, as supervisors of the town of Liberty in Outagamie county, to remove certain obstructions from a certain highway or strip of land asserted to be a legal highway. The defendants made due return to the alternative writ and in substance denied that the alleged highway was a legal highway; denied that it had ever been used as a highway except for a period of approximately two years; denied that it had ever been fenced; denied that the town had purchased the right of way therefor; denied that the town had ever worked the said road, kept it in repair, or expended town funds upon it except for a period of approximately two years; admitted that the plaintiffs had requested and petitioned the town board to order a certain fence erected across said road to be removed and that the town board had refused to order the said fence removed; admitted that the town board had claimed that no road or public highway existed at the location in question; alleged that if a highway had ever existed, it had been abandoned and discontinued; and finally alleged that the owners of the lands adjoining said alleged highway assert sole and exclusive ownership to the strip of land alleged by the plaintiffs to be a highway. Trial was had to the court. The court found in substance, and so far as is here material, that ever since the year 1909, there had existed a legally laid out and established public highway, described as follows, “A highway three (3) rods wide beginning at the intersection of what is described and now existing State Trunk Highway No. 76 located in said town of Liberty between sections eleven (11) and twelve (12), in township twenty-three (23) north, range fifteen (15) east, thence running south on said section line between the two sections mentioned to a point described as the southeast corner of the SE 1/4-NE 1/4 of section 11, and the southwest corner of the SW 1/4-NW 1/4 of section 12, all in township 23, north of range 15 east. Said section line being the center line of said highway described”; that said highway (right of way) was purchased from the respective owners thereof for highway purposes and that said owners were fully paid therefor by the town of Liberty with town funds; that said town opened the same for public travel and expended public moneys for the improvement thereof; that fences were built along said highway on the east and west boundary lines thereof which were thereafter maintained on both sides for more than twenty years; that said highway was never discontinued nor abandoned as provided by law; that the public had traveled and used said highway for more than twenty years and ever since 1909; that the roadbed of said highway is in good condition, graded and level and needs no repairs to make it safe for travel; that the owners of the adjoining lands have taken down the fences along the lines of said highway and have obstructed the same so as to prevent the use of it by the public; and that the defendants, as members of the town board, have failed, neglected, and refused to remove said obstruction or to recognize that the said highway exists and in so acting have refused to perform their duty in protecting the public right and interest in and to said highway. The court concluded that the plaintiffs were entitled to a writ of mandamus commanding and enjoining the defendants as members of the town board of the town of Liberty to remove the obstructions in said highway as provided by sections 86.01 and 86.04, Stats. A peremptory writ of mandamus issued which commanded the defendants, as members of the town board, to remove from the limits of said highway all obstructions thereon and to restore the same to public use within thirty days without further delay. The peremptory writ issued as of August 14, 1936, from which the defendants appealed on August 29, 1936.Eberlein & McCarthy, of Shawano, for appellants.

Catlin & Catlin, of Appleton, for respondents.

NELSON, Justice.

Before considering the merits of this controversy, we must first dispose of the defendants' motion to strike from the bill of exceptions certain pages thereof, which contain an affidavit, subscribed and sworn to by W. C. Doughty on September 29, 1936, and certain copies of highway proceedings taken from the town records and verified to be correct copies of the records by the testimony of one of the plaintiffs' attorneys given at the time the attorneys for the parties were attempting to settle the bill of exceptions. This was long after the trial had been concluded, the judgment entered, and an appeal taken to this court. The court, however, included the affidavit and the copies of the records as a part of the bill of exceptions. The court apparently was of the view that they should be included in the bill of exceptions so as to permitthis court to make such use of them as it desired or saw fit.

[1] A bill of exceptions should contain “the proceedings had and evidence given on the trial and the rulings and decisions of the court *** not otherwise appearing of record,” section 270.43, Stats., and should “include all testimony set forth by question and answer as shown by the transcript of the reporter's notes, unless the parties to the action stipulate otherwise.” Section 270.44, Stats. The statutes are so clear as to give rise to no doubt as to what should be incorporated into a bill of exceptions. Making the affidavit and the copies of the town records a part of the bill of exceptions was wholly improper and the defendants' motion to strike them from the bill of exceptions is granted.

State highway 76, as now located, runs in a northwesterly direction from the southeast corner of the northwest quarter of the northwest quarter of section 12, in township 23 north of range 15 east. It intersects the section line between sections 12 and 11 at a point located a few rods south of a point equidistant from the northwest corner and the southwest corner of said northwest quarter of the northwest quarter of section 12. Prior to about the year 1928, highway 76 ran due west along the eighth line from the southeast corner of said 40 to the southwest corner thereof, then turned due north at that corner and ran along the section line between sections 11 and 12 to the present location of highway 76. At the time highway 76 was relocated there existed immediately to the south of the north and south leg of said old highway 76, just described, a strip of land 3 rods wide which connected with old highway 76 at the corner and ran south along the section line a distance of 80 rods. The status of that strip of land is the principal question before us. That strip will be referred to as the Bodoh road. A short distance south of the south boundary line of highway 76 as it now exists, a fence has been erected across the north and south leg of old highway 76, for the obvious purpose of preventing or impeding travel by the public over old highway 76 and the Bodoh road. The fence in question starts upon lands in section 11 and ends on lands in section 12. It is about 50 rods long and serves no purpose except that of obstructing or impeding travel.

Were it not for the fact that the north and south leg of old highway 76 was connected with the Bodoh road, the relocation of highway 76 would doubtless have operated as an abandonment of old highway 76. No claim is made by the plaintiffs that so much of old highway 76 as runs along the south side of the northwest quarter of the northwest quarter and the north side of the southwest quarter of the northwest quarter of section 12 has not been abandoned.

The defendants contend: (1) That the evidence does not sustain the findings of the court that that part of the locus in quo hereinbefore described as the north and south leg of old 76 was ever a public highway; (2) that the evidence does not sustain the findings of the trial court that the Bodoh road was ever a legal highway; (3) that if there ever was a legal public highway from the south side of state highway 76 as it now exists to the north end of the Bodoh road, the same has been abandoned and discontinued and the same has reverted to the original owners; (4) that if the Bodoh road ever was a public highway, it has been discontinued and the land has reverted to the original owners; (5) that in no event did the circuit court have the power to compel the defendants to put this road in passable condition and repair the same; (6) that E. A. Knoke and Arnold Bucholz, the respective owners of the lands adjoining, were and are necessary parties to this action; and finally (7) that the plaintiffs have entirely misconceived their remedy.

[2] As to defendants' first contention, we consider it without merit. The old highway which became highway 76, existed for many years before becoming a state highway and existed many years thereafter before it was relocated in 1928. Upon the trial no one questioned the status of old highway 76, as it existed prior to 1928.

[3] As to defendants' second contention, we are of the opinion that the evidence supports the following findings of the court: That the Bodoh road 80 roads long and 3 rods wide was laid out in 1909; that the right of way therefor was purchased by the town with town funds from the then adjoining owners of the lands; that the adjoining owners thereafter built fences along the east and west boundary lines thereof; that the town shortly after it was laid out worked and graded it; and that it was traveled by such of the public as had occasion to use it every...