Ruhland v. Supervisors of the Town of Hazel Green

TayloR, J. Upon the record it is alleged by the learned counsel for the appellants that the board of supervisors, by their adjournment of the hearing of the petition from October 27 to December 1, 1880, lost all jurisdiction of the subject matter of said petition, and that their subsequent order made on said first day of December, laying out the highway, is void. On the other side, it is alleged by the learned counsel for the respondents that these plaintiffs are estopped from questioning the authority of the board to make the order by having consented to the adjournment. This court has repeatedly held that the power to lay out, vacate, or alter a highway by the board of supervisors of a town is strictly a statutory proceeding, and that such proceedings are void in every case where the requirements of the statute are not substantially complied with. Williams v. Holmes, 2 Wis., 129; Austin v. Allen, 6 Wis., 134; Babb v. Carver, 7 Wis., 124; Roehrborn v. Schmidt, 16 Wis., 519; Isham v. Smith, 21 Wis., 32; State v. Langer, 29 Wis., 68; Damp v. Town of Dane, 29 Wis., 419; State v. Castle, 44 Wis., 670. It seems to us very clear that these decisions settle the question beyond dispute, in this court, that the supervisors can only acquire jurisdiction of the proceeding to lay out a highway by a strict compliance with the statutory direction, and that no consent of the applicants for the highway, or the persons through whose lands the highway is laid out, can validate the proceedings, if the board has failed to comply with such statutory requirements. A land owner, through whose land the highway runs, may, by express agreement, waive his right to compensation for the land taken for the [669] highway, and he may, undoubtedly, by express stipulation waive his right to personal notice of the time and place -of the meeting of the board to decide upon the petition, because these things are matters which are personal to him and do not affect the interest of the public generally. J3ut that a land owner cannot waive any step prescribed by the statute in which the public generally is interested, is, we think, conclusively settled by the cases of Roehrborn v. Schmidt and Damp v. Town of Dane, supra. In the first case it was held that the land owner, who appeared before the supervisors at the time fixed for the hearing of the petition and objected to the laying out of the highway, did not waive the right to question the jurisdiction of the board to proceed, for the reason that the public notice required by the statute had not been posted as required by law; and in the second case it was held that the appearance of the town before the board was no waiver of its right to question the jurisdiction of the authorities assuming to lay out such highway on the ground that no proper petition had ever been presented to them. The case of Roehrborn v. Schmidt, which was approved in State v. Langer, supra, is a clear adjudication that the public notice required to be given by the supervisors before acting upon the petition is jurisdictional, and that a failure to give such notice vitiates the proceedings as to all parties who have not estopped themselves by receiving from the town compensation for their lands taken by said highway. Such public notice is necessary to give the board jurisdiction to proceed to judgment in the matter. As is said in Steen v. Norton, 45 Wis., 412, the board can only acquire jurisdiction of the proceedings by complying with the requirements of the statute; and when the board has acquired jurisdiction of the proceedings, it can only retain such jurisdiction by a compliance with the directions of the statute. This latter proposition was settled in the case of State v. Castle, supra. In State v. Castle it was held that, under the law as it stood [670] before oh. 376, Laws of 1876 (now sec. 1269, R. S. 1878), was passed, the board lost all jurisdiction of the proceedings unless they made and filed their decision within ten days after the time fixed in the notice for deciding upon the application. The only difference between the law in force when the order in this case was made and the law in force when the order was made in the case of State v. Castle, is that now the decision must be made and filed within ten days after the date of the last adjournment of the hearing, and that no adjournment can be made for a longer period than thirty days after the day fixed in the notice for the first meeting to decide upon the application. See secs. 1267, 1268, and 1269, R. S. 1878; secs. 66, 67, and 68, Tay. Stats., pp. 491, 492. As the law now stands, the board must make their order within ten days after any adjournment of such hearing to any day within thirty days after the time fixed in their original notice for such hearing, so that they cannot in any event make a valid order after the expiration of forty dai^s from the time fixed in the first published notice for their meeting to decide upon the petition. In the case at bar the order laying out the highway in question was made more than thirty days after the time fixed in the notice given to the public fixing the day of hearing to decide upon the application, and more than ten days after the last adjournment of the hearing made within said thirty days, and is clearly void, unless the fact that the plaintiffs in error consented to such adjournment of the hearing for more than thirty days after such time estops them from alleging such error. We are of the opinion that the consent of the plaintiffs in error could not continue the jurisdiction of the board beyond the time fixed by the statute and within which they were required to make the same. The question whether the board had jurisdiction of the proceedings at the time the order was made, is a question which relates to the subject matter of the proceeding, and no waiver by any one can confer such juris [671] diction; nor is a party who undertakes to waive such jurisdictional matter estopped from questioning the validity of such proceedings. See Steen v. Norton, Damp v. Town of Dane, supra, and Ohse v. Bruss, 45 Wis., 442-444; Herrick v. Racine W. & D. Co., 43 Wis., 93; Henckel v. Sewing Machine Co., 51 Wis., 363. In the case of Herrick v. Racine W. & D. Co. this court say: “ It appears to follow that if a court cannot restore its own jurisdiction, lost by statutory limit, the parties cannot restore it by consent; for it is not jurisdiction of the person, but of the proceeding. And we are unable to comprehend how that could be done by the implied consent or waiver, which cannot by express consent.” The decision in that case is clearly in point, and must govern this case. Here the board lost jurisdiction of the proceedings after lapse of thirty days from the date fixed in the notice for meeting to decide upon the petition, and no consent of parties could restore such lost jurisdiction. But the learned counsel for the defendants in error insists that the supervisors, with the consent of the persons through whose lands the proposed road is laid out, may lay it out without any regard to the requirements of the statute as to giving public notice of their meeting to decide the question. His argument is based upon the theory that no one has any real interest in having the proceedings carried on in the way provided by the statute except the land owners, and perhaps the petitioners, and that they may therefore waive all the statutory requirements except the presentation of the proper petition. This, we think, is clearly a wrong view of the statute. As was said in the case of State v. Castle, the supervisors have no power to bind the town for which they act in laying out a highway unless they proceed according to law; and the town cannot be compelled to open the same, nor to pay the damages awarded to the owners of the lands taken for the ' same, unless such proceedings are conducted in the manner [672] prescribed by the statutes. In that case it was also held that the supervisors could not, by agreement with the land owners, discontinue a highway and open a new one so as to bind the town. Any other construction of the powers of the board of supervisors in laying out and establishing highways would, we think, be highly detrimental to the interests of the public, and clearly contrary to the policy of the statutes of this state. It is true, the owners of lands may open a way through them and dedicate it to the public as a high way, and if the proper authorities accept the dedication such way may become a public highway. But that is not this case. Here the land owners, instead of being willing to dedicate the way to the public, object to its being laid out as a highway, and claim compensation of the town if the way be opened through their lands. There is nothing in this record which looks like a dedication on their part. And it seems to us clear that, unless we overrule the case of Damp v. Town of Dane, supra, neither of the land owners in this case could, if the town refused to pay the damages awarded to them, recover the amount of the town in an action brought for that purpose. And if that be so, then they ought to be permitted to challenge the right of the town to open the same, notwithstanding they consented to an adjournment beyond the thirty days fixed by the statute as the limit within which the power to adjourn was given to the supervisors. By the Court.— The order and judgment of the circuit court, affirming the proceedings of the town board of supervisors of the said town of Ha&el Oreen in and about the laying out of said highway, is reversed; and the said order of the town board of supervisors of said town of Hazd Oreen, in and about the laying out of said highway, is also reversed.