Babb v. Carver

[126] By the Court, Cole, J. The circuit court instructed the jury in this case that the Supervisors of the town of Reeds-burg had taken the necessary “ steps to lay out the highway, and had taken the proper steps to compensate the plaintiff for taking his land for a public highway,” to which instruction the counsel for the plaintiff in error excepted. We consider this instruction erroneous, and as it materially involved the very merits of the defence set up by Carver to the action of trespass, there must be a new trial. In the case of Austin vs. Allen, 6 Wis. Rep. 134, this court held that a notice given by the Supervisors, that an application had been made by six freeholders of the town of Lima for the laying out and establishing a highway therein described, and that the Supervisors would meet at “ a certain time and place to make an examination and survey of the proposed road” was not such a notice as is required by section 53, chapter 16, R. S. 1849. It was there decided that the notice must, with reasonable strictness, comply with the language of the statute, and inform all persons interested in the laying out, altering or discontinuing any highway, of the time and place at which the Supervisors will meet and decide upon the application. It is the decision or final determination of the Supervisors upon the application which most materially affects the rights of the public and of individuals, and hence it is essentially necessary to state in the notice when this decision or final determination is to be made. The notice in the present case was that the Supervisors would meet at a certain time and place, “to take into consideration the petition of Daniel Carver and others, for laying out of a highway in said town.” The notice is not that they would there decide upon the petition, but would take it into consideration, or deliberate upon it. This they might do, without even deciding upon the application. As it appears to us, this notice is more defec [127] tive than the one given in the case of Austin vs. Allen for there the Supervisors stated they would make an examination and survey of the proposed road. In the case at bar, they give notice that they will meet to take into consideration the petition, without indicating any intention of locating the highway, and of deciding upon the application. These decisions, as to the form and substance of the notice given by the Supervisors in proceedings for laying out highways, may seem like refining too much upon language, but when citizens are to be divested of the use and dominion of their property, and when important interests are involved, we know of no safer or better guide for officials than the sense, meaning and requirements of the statute. If, therefore, the Supervisors did not give a sufficient and proper notice of the time and place at which they would meet and decide upon such application for laying out the highway, they had not taken the necessary steps for establishing a highway when the several trespasses complained of were committed, and the defence of Carver must fail. His excuse or justi-r fication is, that he went upon the land and cut down the trees growing thereupon, as overseer, for the purpose of opening the highway for public travel and use. But the Supervisors could only lay out a legal highway by proceeding according to law. And this, we think, they failed to do. The judgment of the circuit court is reversed, and a new trial ordered.