Neis v. Franzen

By the Court, Colb, J. The whole case abundantly shows that the defendant rested his entire defense upon the ground [542] that be did the acts complained of while acting as a supervisor in laying out or opening a highway. All his testimony was obviously directed to make out a justification upon that ground, and no objection was taken that the evidence was not admissible under the answer. If, therefore, we were to assume that the answer was technically defective because it did not distinctly allege that the trespasses complained of were committed by the defendant by virtue of his authority as one of the supervisors of the town' of Calumet in opening a public highway, still the objection to it ought not to prevail at this stage of the cause, when not taken in the court below. It was not possible that the plaintiff could be misled as to the nature of the defense disclosed in the answer. The defendant does not attempt to justify his acts upon the ground that as an individual he has a right to cut down trees standing in the highway which passes over the land of another. He rests his defense solely upon the fact that he was a public officer, and, in the discharge of his legal duties as such, might do what he did. Again, it is claimed that the court erred in admitting the application of the freeholders for the alteration of the highway, because such application asked for no specific route, and therefore it is argued that it was too indefinite to even give the supervisors jurisdiction of the proceeding. The application was to alter a certain piece of highway which is laid on the town line between said towns, beginning at the S. W. corner of section 35, T. 17, R. 19, and on the N. W. corner of section 2, T. 16 R. 19, and running due east to the quarter line of said section, 'said alterations to be made by the supervisors between these two points to avoid that swampy land, and lay the said highway either northward or southward, that is either through T. 17 or T. 16, at the discretion of the supervisors, on dry and good land.” We are of the opinion that this application designates with sufficient certainty the alteration asked for in the highway. The road had already been laid out on the town line, and the petitioners ash that it be changed between two [543] points so as to avoid a swamp. The general course of the proposed alteration is stated, and no person could have any difficulty in ascertaining what was desired. It is true, the supervisors were asked to change the road northward or southward from the town line between the termini so as to avoid a natural obstacle, but this was nothing more than asking the supervisors to exercise a discretion over the matter which the law gave them. Eor we do not suppose that the supervisors, in altering a public highway, are necessarily-confined to the particular line named in the application, and must adhere to that precise route or refuse to change the road. They should exercise a reasonable discretion upon the subject, and if satisfied that the public interests require a variation from the proposed line, they should make it. Of course they should adopt the proposed route as far as practicable. But to say that the supervisors can only adopt the definite line of road suggested in the application, without any variation whatever, is unnecessarily restricting their action, and is depriving them of that discretion in the matter which the law has entrusted to them. Another objection taken by the appellant is, that it does not appear from tbe case that any application for a change of the road was made by the freeholders of the town of Calumet to the supervisors of that town. It is said that to authorize the joint action of the supervisors of the two towns, there should be a petition from the freeholders of each town. No question was made on the trial that the freeholders of the town of Calumet had not made such an application, while the joint order changing the highway states that application was made by six freeholders residing in each town. Our statute expressly makes such an 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. Section 59, chap. 19, R. S. 1858. In view of this statute we must hold that this objection is not well taken. It is proper further to remark that no such provision of law existed in the statutes of 1849, and [544] hence, much of the reasoning of the court in Williams v. Holmes, 2 Wis., 129, is inapplicable to the case before us. This observation likewise disposes of the fourth point made on the brief of the counsel for the appellant. Further, it is insisted that the alteration in the highway did not correspond with the application therefor. It appears that the supervisors, instead of changing the road so as to make it run on a line direct from one terminus to another, ran it on a line direct to a highway intersecting such highway a short distance from one terminus, and thence along that highway to the point of termination. We have already stated that we did not consider that the supervisors were limited to the precise route specified in the application, but might depart from it, if, in their judgment, the public interest would be thereby promoted. The statute requires them to “ decide upon the application as they shall deem proper” (section 57), thus conferring upon them some power and discretion in regard to selecting the best route. Section 67 also provides that whenever it shall be deemed necessary to lay out a highway upon the line between two towns, such highway shall be laid by the supervisors of each of said towns, either upon said line or as near thereto as the situation of the ground will admit; and they may vary the same either to the one sided or the other of such line as they may deem necessary. These and other provisions in the chapter clearly show that it was the intentiou to give the supervisors some discretion in the matter, and that they are not required to adopt any proposed alteration fully, but may depart from it when they think the public good demands the change. The next point made upon the brief of the counsel for the appellant is sufficiently answered by a reference to section 68. It will be seen that this section fully authorizes the supervisors, upon laying out a highway upon the line between two towns, to determine what part of such highway shall be made and kept in repair by each town, and what share of the dam [545] ages shall be paid by eaeb. And we have no doubt that the supervisors are equally authorized to apportion the work and damages where they alter a road laid out on a town line, as where they open it in the first instance. But it is said that the statute makes no provision for the alteration of a town .line road. It will be seen, however, from section 67 already quoted, that the amplest authority is given the supervisors of adjoining towns to lay out a highway upon a town line ; and this greater power to lay out, includes the lesser one of altering such highway upon application made to them for that purpose. This disposes of all the material points in this case made by the appellant. The judgment of the circuit court must be affirmed.