State ex rel. Giblin v. Supervisors of the Union

LyoN, J. Several objections to the regularity of the proceedings by which the supervisors attempted to lay out the highway in question were made in the argument. We find it necessary to notice but one of them. The proceedings were had under sec. 1215 of the Revised Statutes. That section does not limit the time within which the applicant for the highway shall pay the advantages or benefits assessed against him, but does provide that the amount so assessed “ shall be paid to the town treasurer before the order for laying out such highway shall be filed.” Were that the only statute on the subject, the courts might be compelled to hold that the applicant for the highway may take his own time to pay or refuse to pay the advantages assessed against him; thus keeping the persons whose lands the supervisors have determined to condemn to the public use in suspense for an indefinite period, as to whether their lands are ultimately to be taken or not, making the final result dependent upon the convenience or caprice of the applicant. That this uncertainty might and probably would, interfere with the beneficial use of the land, and seriously embarrass the owner in his plans for the improvement and cultivation of his adjacent lands, is perfectly obvious. Besides, if the applicant delay more than thirty days after the determination of the supervisors to lay out the highway to pay such assessment so that the order may be filed and recorded, it is doubtful, to say the least, whether the owner of the land condemned could then appeal from such determination. It would be found difficult to strain the language of sec. 1276 so as to save in such case the right to appeal. But there is another statute which, in our opinion, saves the owner of the land taken for the highway from exposure [161] to so mucb injustice at the will or caprice of the applicant. Sec. 1269 provides that “whenever the supervisors shall lay out, alter, widen, or discontinue any high way, they shall make out and sign an order therefor, . . . and such order shall be filed and recorded in the office of the town clerk. . . . Such order, together with the award of damages hereinafter mentioned, shall be so filed within ten days after the day fixed by their notice or adjournment for 'deciding upon such application; and in case said supervisors shall fail to file such order and award within the ten days aforesaid, they shall be deemed to have decided against such application.” The language of sec. 1269' is sufficiently broad to include a highway laid out pursuant to sec. 1275, and we have no doubt that the legislature intended to include therein such highways. Otherwise we should find some limitation of time within which the applicant, under sec. 1275, must-pay the assessment against him, to the end that the order and award might be filed in the proper office, and the highway thereby established. Hence we conclude that if the applicant, under sec. 1275, neglects, for more than ten days after the determination of the supervisors to lay the highway, to pay the sum assessed against him as advantages, and thus secure the filing within that time of'the order laying the highway, it must be deemed that the supervisors have decided against his application. In this case the relator neglected to pay the assessment against him, and thus obtain the filing of the order and the establishment of the highway, for more than three months. This delay is fatal to the validity of the highway in question. Under no other construction of the statutes on this subject can justice be done to the owner whose property is sought to be taken from him without his consent and against his protest. Neither is it any hardship to the applicant. The highway is laid out chiefly for his benefit, and he should not put the machinery of the law in [162] •motion for the condemnation, of his neighbor’s property, theoretically to the public use, practically to his individual úse, until he is ready to perform the conditions which the law imposes upon him. . Our conclusion is that the attempt to lay out the alleged highway has failed, and hence that the supervisors should not be required to open it as a public highway. By the Court.— The order and judgment of the circuit court awarding a peremptory writ of mandamus to the supervisors to open the alleged highway is reversed, and the cause 'remanded with directions to quash the alternative writ and dismiss the proceedings.