Kellar v. Earl

Piuney, J. The evidence was quite clear to the effect that the highway had been laid out over, upon, and through the inclosed and cultivated lands of thfe plaintiff, and that, he had maintained a fence from an early day, substantially continuously, along, west of, and quite near the said north and south line upon which the highway was laid out, and that he resisted and opposed all attempts to open said highway over his land; but Nelson, who owned the land east of said line, afterwards built or set his fence back from said line easterly in the neighborhood of about two rods. The result was that the public travel could pass along said line upon the lands so fenced out by said Nelson; notwithstanding the plaintiff continued substantially to maintain his fence as before. There had evidently been a considerable contention between Nelson and the town authorities, on the one hand, and the plaintiff, on the other, as to the existence of the highway in question, and whether the plaintiff should remove his fence and open such highway for travel over, along, and upon the intervening strip between his premises [493] •and Nelson’s land, where he had maintained a fence, as aforesaid, from a very early date. It will be seen, therefore, that the evidence did not, as in the case of Bartlett v. Beardmore, 77 Wis. 356, show that the alleged highway, as against the plaintiff, had become such by user or dedication, but that the rights of the public in and over the locus in quo depended wholly upon the validity of the proceedings in laying it out and attempting to open it and appropriate it to public use and travel. By sec. 1284, R. S. 1878, it is provided that “ whenever the supervisors shall have laid out, widened, or altered any public highway through any inclosed, cultivated, or improved lands, and their determination shall not have been appealed from, they shall give the owner or occupant of such .lands notice in writing to remove his fences, within such time as they shall deem reasonable, not less than thirty days after giving such notice; but no person shall be required to remove such fences between the first day of April and the first day of November in. any year.” And sec. 1337 provides that “ no person shall be required to remove any fence, •under the” provisions of sees. 1334-1336, inclusive, “except between the first day of November and first day of April, unless the same shall have been made within three months next before the making of the order for the removal thereof.” The laying, out of the road ovér the land of the plaintiff ■was not a taking or appropriating it to the public use. The •public acquired no right to travel upon it until a further act was done; that is, until it was opened by order of the supervisors. This, under our statute, is necessary before the public can usé the land as a highway; and until the right to use the property is vested in the public it cannot be said to be ■taken, and remains private property, and the owner can still use the land in the same manner, he did before the road was laid out. State ex rel. Evans v. James, 4 Wis. 411. The orders and notices show upon their face that, when - [494] they were made and given, the fence then existed and was maintained as contended by the plaintiff, and there was no evidence produced by the defendant to show th'at the highway had been legally opened over and upon the plaintiff’s land, or that the fence in question had been built or made within three months next before the making of said orders for the removal thereof. Both the orders or notices directed to and served on the plaintiff were wholly void, for the reason that they required him to remove said fence between the 1st day of April and the 1st day of November, the first requiring him to remove it within forty-five days after the service thereof, September 27, 1893, and the other, served October 25, 1896, requiring him. to remove the same within thirty days after such service on him. Both orders and notices were nullities. State v. Egerer, 55 Wis. 527; State v. Clark, 67 Wis. 229. By making the order of September 27, 1893, and by serving a copy of it, the supervisors, as the court said in State v. Egerer, supra, required the plaintiff to-remove his fence during the inhibited period. This is precisely what sec. 1337, R. S. 1878, provides shall not be done between April 1st and November 1st, yet the order in question was made September 26, and served September 27,1893; and the same was true as to the order made and served October 25, 1896. Until a valid notice or order had been served upon him, the plaintiff had a right to use and occupy the loans in quo, and to maintain his fences thereon at his pleasure. It could not be considered an obstruction to the highway until he had been lawfully required by the supervisors to open it. As was held in State v. Clark, supra, the service of a void notice would not set the time running against the defendant in which he was by law required to remove his fence; and Taylob, J., in delivering the opinion of the court, said: “The statute is clear that a party cannot be required to remove his fences from within the boundaries of a highway [495] at any time between the 1st day of April and the 1st day of November in any year, and a notice which requires him to remove such fences within such dates is a void notice. R. S. sec. 1337; State v. Egerer, 55 Wis. 527.” This defect exists in, and is fatal to, both notices. Eor this reason the defense insisted on by the defendant wholly failed, and the circuit court properly directed the jury to return a verdict for the plaintiff for the amount of damages he had sustained; and the court properly denied the defendant’s motion to set it aside and grant a new trial. Other questions were made and argued, but, upon the whole record, it is entirely clear that the rulings of the circuit court were correct. By the Court.— The judgment of the circuit court is affirmed.