Smart v. Hart

Tavlok, J. The learned counsel for the appellants contend that there is no equity in the claim made by the plaintiff, and insist that, although the plaintiff may have made a case showing that the supervisors and commissioners have exceeded their statutory authority in laying á part of the said highway through and upon a building or fixture of the plaintiff, and through and upon the yard or inclosure necessary to the use and enjoyment of the same, within the letter of the statute prohibiting them from so doing (see sec. 1263, R. S. 1878), yet they have not violated the spirit of said restraining section. In view of the statute and the findings of the court, we think it is evident that the defendants have exceeded their power in attempting to lay out and open a highway through the dwelling-house yard, cow-stable, wagon-shed, and chicken-house of the plaintiff. They are attempting to do a thing expressly prohibited by statute, and, however unjust or unwise it may be on the part of the plaintiff to stand in the way of a public improvement which is greatly desired by the people, this fact can have no force in conferring a right upon the defendants which is expressly denied them by statute. This court decided that an attempt to lay out a highway in violation of the statute above referred to was a usurpation of power, and wholly void. Seymour v. State, 19 Wis. 240; Flanders v. Wood, 24 Wis. 474 512. These cases did not present a more flagrant violation of the statute than the one at bar. It is weli settled in this' court that when public officers threaten to take possession of private property and appropriate it permanently to a public use, in violation of law, a court of equity will interfere to prevent such appropriation. See Flanders v. Wood, 24 Wis. 572; Church v. Joint School Dist. 55 Wis. 399; Uren v. Walsh, 57 Wis. 98. By the Court.— The judgment of the circuit court is affirmed.