Brock v. Hishen

Lyon, J. It satisfactorily appears from the motion papers, that due notice was given the plaintiffs, in the spring of 1875, to remove their fences from the line of the alleged highway, although the precise time when such notice was given is not stated. If the locus in quo is a legal highway, such notice [679] put tlie plaintiffs in default after tlie expiration of tlie time allowed tliem for removing tlieir fences, and made it tlie duty of tlie supervisors to cause tlie same to be removed. The delay to do so until the following November did not render a new notice necessary. But had no such notice been given — had the road been opened prematurely through plaintiffs’ land, — it would still be very doubtful whether the extraordinary power of a court of equity should be interposed to restrain a repetition of the act. The controlling question to be determined is, Do the motion papers disclose any jurisdictional defect in the proceedings which resulted in the order of the supervisors of January 9th, 1875, laying out the highway over and upon the ldc%t,s in quo? The learned counsel for the plaintiffs maintain the affirmative on several grounds; and these will be briefly considered. 1. A justice of the peace of the city of Mineral Point (which city adjoins the town of Mineral Point) has jurisdiction to appoint commissioners to whom an appeal may be taken from the determination of the supervisors of that town refusing to lay out a highway therein. Such jurisdiction was upheld in The State ex rel. Wood v. Goldstucker, ante, 124. 2. The name of the commissioner who had previously acted as a supervisor in tlie matter of the same highway, should have been stricken from the list, had the objection been taken when the commissioners were selected. "We cannot say that one who had previously decided, under the sanction of his official oath, that the highway ought to be laid out, was disinterested, within the meaning of the statute prescribing the qualifications of such commissioners. But we think the objection comes too late. It is not unlike the case where air incompetent juror is permitted to be sworn in a cause without objection. Whether the fact be known or unknown to the defeated party, such incompetency is not ground for reversing the judgment. In some cases it is not even ground for a new trial. State v. Vogel, 22 Wis., 471. [680] But it is argued that the plaintiffs were not parties to the proceeding for selecting the commissioners, and had no opportunity to make the objection. True, they were not named as parties, and the statute does not require that notice of the time when and place where such selection will be made shall be served upon them. Yet we think they are in privity with the supervisors in that sense that notice to the latter was notice to them; and we do not doubt that they had a legal right to appear before the justice and object to the competency of any person whose name appeared in the list from which the commissioners were to be selected, just as the respondent in a case appealed from a justice of the peace may appeal in the circuit court' and litigate the case, although no notice or process of appeal has been served upon him. 3. It is claimed that the supervisors lost jurisdiction to lay out the highway, by delaying to do so more than ten days after the report of the commissioners was filed in the office of the town clerk. We are unable to find any statute which supports the position, or which prescribes the time within which the supervisors must act. When the report was filed, it became the duty of the supervisors to lay out the highway. They had no discretion in the matter. If they refused or neglected to do so within a reasonable time, the court, on proper application, would compel them to discharge the duty. 4. The vote of the town meeting to abandon the highway is of no importance. That body had no jurisdiction whatever over the subject. Even the supervisors could not vacate the road until after one year frpm the date of their original determination. Laws of 1869, ch. 152, sec. 83. 5. It was no legal impediment to the highway, or to the opening thereof, that the plaintiffs’ damages had not been paid when the same was laid out or opened. Although the proposition may not have been definitely held by this court, yet doubtless a statute which authorizes a municipal corporation to take private property for public use, is valid if it pro [681] vides an adequate process for ascertaining and paying the value of such property; and private property may be so taken under a statute without violating the constitutional restriction on that subject (Const., art. I, sec. 18), although payment has not been actually made therefor. The conditions precedent to such taking are, that the value be ascertained, and an adequate and safe fund provided from which payment is to he made, which in the case of a taking by municipal corporations is considered equivalent to actual compensation. Powers v. Bears, 12 Wis., 213. The statute under which the plaintiffs’ land was condemned to the public use provided a method for ascertaining their damages, and such damages were ascertained pursuant thereto. It also provided that the town board should audit the amount of such damages, and that a tax should be levied on all taxable property in the town to pay the same. Any officer failing in his duty in the premises would, on proper application, be compelled to it by the courts. There is no possibility for the plaintiffs to lose their damages, if they resort to the plain and speedy processes which the law places at their command to compel the town to pay such damages. Hence, when the highway was laid out, and the plaintiffs’ damages ascertained, it was competent for the town authorities to take the stej>s pointed out by the statute for opening the highway to the public use. 6. It is stated in some of the affidavits read in opposition to the motion, that the defendants tore down fences outside the limits of the highway. If so, we are satisfied that there is no danger that the act will be repeated, and there is, of course, an adequate remedy at law for what has already been done. 7. In conclusion, it should be observed that we do not decide that the locus in quo is a public highway; for we have not before us the full record of the proceedings in the matter of laying out the same. We only hold that the motion papers fail to'show any fatal defect in such proceedings. Neither do we determine whether the proceeding by the plaintiffs to have [682] their damages reassessed by a jury is a waiver of their right to question the validity of the proceedings laying out the alleged highway, or estops them to deny that it is a public highway. See Smith v. Milwaukee, 18 Wis., 63; Webster v. The Phœnix Ins. Co., 36 id., 67; The N. W. Mut. Life Ins. Co. v. The Germania Fire Ins. Co., ante, 446. By the Court. — -The order of the circuit court dissolving the injunction is affirmed.