Roehrborn v. Schmidt

By the Court, Cole, J. The position that the order of the supervisors laying out a highway is conclusive as to the posting and serving the notices preliminary to their meeting to decide upon the application, even if it recites that such notices have been “duly given to all the occupants of the lands through which the highway passes,” is clearly untenable. The statute makes the order competent evidence of the facts therein contained, and “prima facie evidence of the regularity of all the proceedings prior to the making of such order.” R. S., sec. 59, [522] chap. 19. This indubitably shows that it was not intended to make the order conclusive of any thing therein stated, but merely that the recital of a fact in the order raises such a degree of probability in its favor, that it must prevail unless the contrary is proved. But still it is competent to show the truth, and to prove that the notice was not given, even though the order says that it was. The circuit court therefore, very properly refused to charge the jury “that the statement by the supervisors in the order laying out the road, that the applicant for such highway, having five days notice previous to our said meeting, caused such notice to be duly given to all occupants of the lands through which the highway passes, and such notice having also been posted up in three public places in said town, ten days before the time of our meeting,’ was conclusive and could not be impeached.” The instruction was clearly erroneous. Neither was the second instruction asked, sound, as a proposition of law. That instruction is in substance, if a party is present at the meeting of the supervisors for deciding an application for laying out a highway, and makes no objection to their proceedings, but allows them to proceed informally, taking no part in their action, that he is afterwards estopped from contesting the regularity of the proceedings of the supervisors in any collateral suit. We do not know upon what ground a party can be said to be estopped in the case supposed. He is not required to state his reasons against the laying out of the highway to the supervisors, or be deemed to waive his objections. The supervisors must take all the steps necessary to establish a highway under the statute. The owner stands upon his strict legal rights, and cannot be presumed to waive any objection, because he fails to make it before the supervisors. This, we think, disposes of all questions in the case necessary to be noticed. The judgment of the circuit court is affirmed.