State ex rel. Smith v. Board of Supervisors

Cole, O. J. It is insisted by the defendants’ counsel that the alternative writ in this case should have been quashed because it is not alleged in the relation that the overseer of highways, or some person acting under his direction, entered upon the lands and constructed the ditch which caused the injury of which the relator complains. It is alleged that the town board of supervisors caused the ditch to be constructed for the purpose of preserving and protecting the public highway. It is said that it is only where the work is done or the improvement made by the overseer himself, or some person acting under his direction, that an aggrieved party can have his damages appraised under the statute. This position we consider wholly untenable. The town board has a general supervision of the highways of the town, and it is one of its duties to give directions for repairing and improving them. Ordinarily the overseer attends to making repairs upon highways, but the character of this improvement was such that the supervisors themselves deemed it best to take charge of the work. It seems to us there can be no doubt that they had ample authority to do [204] so, and if the relator has sustained damages by the work, they may be assessed under secs. 1236, 1237, R. S. This point was practically so decided in Smith v. Gould, 61 Wis. 31. It would be a most unreasonable construction of the statute to hold that it only applied to a case where the land Avas entered upon and taken by the overseer or a person acting under him, and did not apply where the supervisors themselves caused the work to be done. Another ground relied on for quashing the writ is that neither the relation nor writ sets forth the facts which show that the work done was necessary for the protection of the highway. Why should the writ state these facts? The supervisors constructed the ditch presumably because it was necessary, or deemed to be necessary, in their judgment, for the preservation of the highway. We certainly cannot presume that the supervisors acted unadvisedly in the matter, and made an improvement which was not called for by the condition of the highway; and the mere fact that they caused the work to be done is all that need be stated to show that it was necessary and that the relator is entitled to the relief he seeks. It is further insisted that the relation and writ are defective because there is no sufficient description therein of the highway which wras protected, nor of the lands alleged to have been injured by the making of the ditch. This objection must be overruled. Both the relation and writ state that the relator was, in November, 1881, the owner 'in fee of a part of the S. & of the N. E. J of section 10, and part of the S. W. \ of the N. W. J of section 11, and of other adjoining and contiguous lands, in township, etc., which were occupied and used by him for farming purposes, and where he resided. It appears that the ditch in question was located on adjoining land, and diverted the waters of Little La Crosse river from their natural channel by the relator’s premises. It is true, there is no description by [205] metes and bounds of the highway at this place, nor of the relator’s land which was' injured, nor do we deem it necessary there should be. This is a proceeding to compel the board to appoint three disinterested electors of the town to appraise the damages which the relator sustained by the construction of the ditch. The appraisers would surely have no difficulty in finding the premises affected by the ditch from the description given; and the present board, even if they are strangers to the acts complained of, can perform the duty enjoined by the writ. “ The writ shows precisely what' is claimed, and the facts upon which the claim is made.” ■ The demand made upon the board to proceed and appoint appraisers is full and distinct. This is too clear for discussion. The last ground relied on for quashing the writ is that there is a misjoinder of parties. The writ is directed to the board and town clerk. It is said the clerk has no duty to perform in the premises, and should not have been made a party. It may be that the clerk was not a necessary party to the proceeding; but the fact that he is made a party furnishes no reason for quashing the writ as to the supervisors. It is not clear but that it was proper to make him a party, but we shall not decide that point. It is sufficient to say that it is the duty of the clerk to keep a record of the proceedings of the board, and it would be necessary he should be present for that purpose when the appraisers were appointed. In any event the fact that he is made a party affords no reason, as we have said, for quashing the writ. By the Court.— The order of the circuit court is affirmed.