Svennes v. Vill. of W. Salem

• Citation: 114 Wis. 650,91 N.W. 121
• Parties: SVENNES v. VILLAGE OF WEST SALEM.
• Decision Date: 19 May 1902
• Court: United States State Supreme Court of Wisconsin

114 Wis. 650

91 N.W. 121

SVENNES

v.VILLAGE OF WEST SALEM.

Supreme Court of Wisconsin.

May 19, 1902.

Appeal from circuit court, La Crosse county; J. J. Fruit, Judge.

Proceedings by Tollef O. Svennes against the village of West Salem to enjoin the construction of a drain on plaintiff's land. From an order vacating the injunction, plaintiff appeals. Reversed.Skaar & Bosshard, for appellant.

Benj. F. Bryant, for respondent.

CASSODAY, C. J.

This is an action to restrain the defendant from constructing a drain upon the land of the plaintiff, described. The action was commenced, and the defendant obtained a temporary injunction, October 2, 1901. The defendant answered on the merits, and alleged, in effect, that it had acquired the right to construct the drain by such proceedings for the condemnation of the land as were required by sections 895-902 of chapter 40 of the Revised Statutes of 1898; that, among other things, it caused an accurate survey and plat of the proposed drain to be filed with the village clerk, and declared by resolution its purpose to take such land and construct and open such drain, and that it would apply to a justice of the peace named, August 1, 1901, at 2 p. m., at his office, for the appointment of a jury to condemn such land; that due notice was given of such application; that a jury of 12 competent persons were selected and appointed at the time and place so named; that the jury so appointed were duly summoned and sworn to serve as such August 9, 1901; that such jury thereupon viewed the premises, and unanimously returned a verdict that it was necessary to take the lands described for the purpose of constructing and opening a drain, and found and appraised the damages to the plaintiff at $250, and that he received no benefits; that the plaintiff appealed therefrom to the circuit court, where the matter was still pending; that the defendant did thereupon enact an ordinance for opening the drain, and set apart $250, and made an order, lawfully executed, payable to the plaintiff, and deposited the same with the village clerk, subject to the order of the plaintiff; that all the acts complained of were done pursuant to the authority of such proceedings,--and prayed that such injunction be vacated, dissolved, and set aside. Upon such answer and corroborating affidavits, the defendant moved the court to vacate and dissolve such injunction. On the hearing of the motion, it was made to appear, and is undisputed, that no notice of the pendency of any application for such condemnation, nor any plat or description of such premises, was ever filed in the office of the register of deeds; that no final order or resolution based upon such application, nor final order, judgment, or decree, or certified copy thereof, was ever recorded in the register's office; that no resolution or ordinance for the taking of such land, or affecting the same, certified or uncertified, was ever recorded in the register's office. Upon such hearing, the trial court, October 8, 1901, ordered that such injunction be, and the same was thereby, vacated. From that order the plaintiff brings this appeal.

The defendant contends, and the plaintiff concedes, that in the condemnation proceedings the defendant complied with all the requirements of sections 895-902 of the Revised Statutes of 1898. The plaintiff contends that such proceedings were incomplete, insufficient, and void, as to the plaintiff, and vested no title to the land in the defendant, by reason of the failure to comply with section 3187a, Rev. St. 1898, as amended. The most of that section relates to condemnation proceedings upon application made, and provides for the filing and recording of certain papers in the register's office,...