Austin v. Allen

By the Gowrt, Smith, J. This suit was commenced originally before a justice of the peace of Rock County, in an action of trespass to lands. The plaintiff filed his declaration in writing, in a plea of trespass guare clausum fregit, with averments alleging matters in aggravation of damages. The defendant pleaded the general issue, and gave notice of special matters in defense, as follows: 1st. That the locus in quo was a public highway, and that the same was obstructed -with the fence of the plaintiff, and that to enable him to pass the highway, he — 137 — necessarily did tbe things complained of; that the locus m quo was a public highway ; that the same had, before the time of committing the supposed trespass, been regularly laid out and established as a public highway; that the same was obstructed by the plaintiff’s rails and fence; that the defendant was, at that time, a supervisor of the town of Lima; that it was his duty, as such supervisor, to remove the said rails and fence from said highway; that he proceeded to do so, and that in the performance of such, his duty, he did and performed the several acts complained of as the trespass aforesaid ; and further that the locus m quo was a public highway, that the same had, before the time of committing the supposed trespass, been legally laid out and established as a public highway; that the same was, at the time aforesaid, obstructed by the plaintiff’s rails and fence; that the said plaintiff had been duly served with a notice requiring him to remove said rails and fence from said highway, and that he neglected to do so; that the time within which he was required by law to remove them had expired, and that the defendant, who was then supervisor of said town of Lima, proceeded to remove said obstructions, and open said road, and in so doing committed the said several alleged trespasses complained of. The justice held that the pleas and notices put the title to land in question, and therefore the defendant gave the required bond for the removal of the cause to the circuit court for trial, where the cause was tried, before a jury, at the November Term, 1857. On the trial in the Circuit Court, the defendant admitted the several acts complained of as trespass, in the plaintiff’s declaration, and the amount of damages claimed by the plaintiff, provided he should not justify the same under the pleadings and evidence to be offered. To maintain the grounds of defense assumed, one Azel Kinney was then called, who testified that he was at the time, town clerk of the town of Lima, and that the books and papers there produced by him were the records of the said town. The defendant then offered said records in evidence, and especially a petition to the supervisors of said town to lay out — 138 — a road across or through the close of the plaintiff in which the alleged trespasses were committed. The petition purported to be signed by some sixteen, freeholders of the -town of Lima, and was in the following form : “ To the supervisors of the town of Lima, Eock county, and “ State of Wisconsin. “ We, the undersigned freeholders of said town, do petition “ your honorable body to lay out a public highway, commenc- “ ing at the center of section 11, in said town, running in a “ westerly course to the northwest corner of John McMillan’s “ field; thence a southerly course to the south line of said sec- “ tion 11; thence westerly to the southwest corner of said corner of said section; thence a southwesterly course to the “ quarter stake between sections 15 and 16 ; thence a south- “ west course to the dividing waters on section 16 ; thence a “ northwesterly course to the quarter stake, or as near as prac- “ ticable, on the west line of said section; thence a westerly “ course to the quarter stake the west side of section II; thence “ westerly to the center of section 18, or to a highway running “ north and south, or nearly so, through the center of said sec- “ tion or near it.” Dated, Lima, Eeb. 22, 1853 ; and signed by some sixteen persons all purporting to be freeholders of the town of Lima. The defendant offered to prove by said Kinney that the signers of said petition were freeholders of said town, at the time the petition was signed and presented. This was objected to by the plaintiff, on the ground that the fact could not be proved by parol. The court overruled the objection, and the witness testified that some eight of the petitioners were in the actual occupancy of farms in said town, claiming to own them; and had been assessed as freeholders. The court upon this proof admitted the petition in evidence, to which the plaintiff excepted. The defendant then produced and offered to read in evidence, from the records of the town clerk of said town, the notice, and affidavit of service thereof, which record is as follows : Notice is hereby given, that an application has been made by — 139 — six freeholders of the town of Lima, to the supervisors of said town, for the laying out and establishing a highway, described as follows: “ commencing at the center of section 11 in said “ town, and running a westerly course to the northwest corner “ of John McMillan’s field; thence a southerly course to the “ south line of said section eleven; thence westerly to the south- “ west corner of said section; thence a southwesterly course to “ the quarter stake between sections fifteen and sixteen; thence “ a southerly course to the dividing waters on section sixteen; “ thence a northerly course to the quarter stake, or as near as “ practicable, on the west line of said section ; thence a west- “ erly course to the quarter stake on the west side of section “ seventeen; thence westerly to the center of section eighteen, “ or to a public highway running north and south, or nearly so, “ through the center of said section, or near it.” “ And that the undersigned, supervisors aforesaid, will meet at the house of Robert Armstrong, in said town, on the seventh day of March, 1853, at (ten) 10 o’clock A. M., to make an examination and survey of said proposed road. Dated at Lima, this 24 day of February, 1853. A. WARREN, WM. S. BENTON, | Supervisors. RocK County, ss. John Jamison, being duly sworn, says that he posted up three notices, oí which the above is a true copy, in three of the most public places in the town of Lima, at least ten days before the time appointed in said notice for the meeting of said commissioners, and also that he served a copy of said notice on John Austin, a resident upon lands across which said proposed road will pass, at least ten days before the said time of meeting of said commissioners. (Subscribed and sworn to. Roce County, ss. Chester D. Bunce, being duly sworn, says that he served a copy of the within notice on William P. Bond, Samuel Yance, Denis Hall, Thomas Yance, Abel Bond, M. Spangle, John McMillin, and Abel Slocum, resi — 140 — dents upon lands across which said proposed road will pass, at least ten days before the time of the meeting of said commissioners. O. D. BITNCE. Subscribed and sworn, &c. But to the reading of these papers in evidence, the plaintiff objected, on the ground that the notice was not such as the law required, and the affidavit of service was not such as was required by law inasmuch as it- did not show service on all persons through whose lands the road was to be laid out, and did not conform to the requisitions of the statute in other respects. The notice required by law is prescribed in section 53, of chap. 16, of the Eevised Statutes, and is as follows : “ IJpon “ application made to the supervisors for the laying out, alter- “ ing or discontinuing any highway, they shall make out a “ notice and fix therein a time and place at which they will “ meet a/nd decide wpon such application, and the applicant “shall, at least five days previous to such time, cause such “ notice to be given to all the occupants of the lands through “ which such highway may pass ; which notice shall be served “ personally, or by copy left with, or at the usual place of “ abode of each occupant of such lands; and such notice shall “also be posted up in three public places in said town for at “ least ten days before the time of such meeting of the supervisors,” &c. The first objection which we deem it necessary to consider is that made to the introduction of oral evidence to prove that the signers of the petition were freeholders. That it was necessary to give evidence of that fact we think there can be no doubt. But it would seem that in order to do so, it is not indispensably necessary to resort to documentary evidence. In the case of The People vs. Leonard, 11 J. R., 510, the court held, on an indictment for forcible entry and detainer, that in such proceeding, as well as in ejectment, peaceable possession was evidence of seizen. So also in 9 Wend., 53, People ex. rel. Gault vs. Van Nostrand, the court held to the — 141 — same doctrine. See also Livingston vs. the Penn. Iron Company, 9 Wend., 512-520; Day and White vs. Alverson Id., 223, Wheat. 59; Bac. Ab., Title Eject. Hence we must conclude that tbe Judge was right in overruling the objection, and admitting proof of peaceable possession with claim of title as prima faeie evidence of seism im, fee. Indeed a contrary rule of evidence in cases of this kind would inflict a grievous burden upon suitors, rendering it necessary to produce a record of the chain of title in the petitioners, for the laying out of a highway whenever any person should choose to dispute its regularity. We should adopt such a rule with great reluctance, unless the weight of authority was clear and unequivocal. But such is not the fact. I have been unable to find a case in which record evidence has been required in cases of this kind. Cases may occur in which it becomes necessary, as where possession is wanting, or where th % prima facie implication arising from possession is rebutted; but all the authorities agree that the kind of evidence offered in this case, viz: peaceable possession under a claim of title, is prima facie evidence of seisen in fee. But we do not see how we can sustain the notice which the commissioners or rather supervisors directed to be given, and which was in fact given. Sec. 53, of Chap. 16, of the Revised Statutes, requires that upon application being made to the supervisors for the laying out of a highway, they “ shall “ make out a notice and fix therein a time and place at which “ they will meet and decide upon such application.” This notice is to be served upon all the occupants of the lands through which the proposed highway is to run, and must specify, as nearly as practicable, the course of such highway, &c. Now the notice made out by the supervisors, and intended to be in compliance with this provision of the Statute, fixed a time and place where they would “meet to make an “ examination and survey of said proposed road.” It is easy to perceive that this is not a substantial compliance with the Statute. To make an examination and survey of a proposed — 142 — road, is a very different thing from deciding upon an application for a proposed road. The parties interested might feel no concern about the examination and surveys which the supervisors might make, but the decision of these functionaries upon the application might be all-important. Twenty surveys •would do little harm, but one decision would fix the rights and interests of the parties, perhaps forever. There is no intimation in the notice that upon such examination and survey of the proposed road, the supervisors would proceed to decide upon the application ; nothing from which the parties could infer that the application would be decided then and there; that then and there, the parties interested might be heard; on the contrary, the fair inference to be drawn from the notice is, that on the day named, the supervisors would meet to inspect the route of the proposed road, in order to enlighten their own minds, and enable them the better to decide upon the application, and appreciate the reasons for or against the measure, which might he urged when they should thereafter meet to decide upon the application. Parties might feel no interest in any examination or survey which the supervisors might make, and not care to he present, while they might be intensely interested in the decision which was to he made; and of tho time and place of which they had a legal right to notice. We also think that the notice of the proper kind should be served upon all the occupants, through whose lands the proposed highway is to he laid. In all these cases the statute must he pursued with reasonable strictness. Tbe most sacred rights of the public, and of individuals, are frequently involved; to guard and secure which, the laws have been made. It is as easy to do the busi-nesss correctly as in any other way, and sometimes, as in the case under consideration, much easier ; and we are unwilling to strain the construction of the statute, in order to remedy an error which, it would seem, required an effort of genius to commit. It is unnecessary to examine the other errors alleged, as these dispose of the case here. Hie judgment must therefore be reversed and the cause remanded.