State ex rel. Gottschalk v. Miller

SiebecKER, T. The record shows that the court heard the cause upon its merits on the return to the writ. No motion [348] to quash having been beard and determined by the court and the case having been decided on the merits, this court will review the judgment in the case. State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4, 16 N. W. 21; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. Cameron v. Roberts, 87 Wis. 292, 58 N. W. 409; State ex rel. Barteau v. Circuit Court, 101 Wis. 422, 77 N. W. 745. The proceedings of the town board are assailed upon the ground that the description of the proposed highway is fatally defective, in that it designates the point of beginning as “about eighteen (18) rods west of the northeast corner of” a quarter-section instead of the southeast corner thereof. This error is undisputed. If is manifest that the southeast corner is the correct one. This clearly appears from what precedes, where this point is located as in the Mark Lewis highway, which crosses the south line of this quarter-section about eighteen rods west of the southeast comer. The order also proceeds to locate the highway as “thence running west on the south line of said forty.” From these data the point of commencement is definitely shown, and the alleged misde-scription becomes a mere clerical error and does not affect the validity of the order. The other alleged defects in the proceedings by the board are that the notice of hearing the petition and its service are insufficient and defective, that the highway laid out does not intersect with another, and that there was no proper award of damages to relator and others occupying lands abutting on the discontinued highway. These irregularities cannot be held to exist in the proceedings had, in view of the record made by the town board in laying out and discontinuing the highways. So far as the record shows, the lands affected by the proposed and discontinued highways are alleged to be owned by Lewis Bethke and Mark Lewis and their damages are shown to have been settled and awarded as required by statute. There is nothing in tire record to show that other [349] parties sustained damages by tbe laying out of tbe new road or tbe discontinuance of part of tbe old one. It is averred that no public notice was given, and that there is no proof tbat a notice was served on owners of lands through which the new highway passes or on those whose lands abut on the discontinued highway. Sec. 1298, Stats. (1898), provides that the order laying out or discontinuing highways “shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to the making of such order.” Under this statute we are concluded by the order laying out and discontinuing the highways in question as to the facts therein stated and as to the regularity of every step taken prior to the making of the order, and this includes the sufficiency of a notice and its service on the proper persons. In Williams v. Mitchell, 49 Wis. 284, 5 N. W. 798, it was held, respecting the effect of such an order: “It is prima facie evidence that the notice was served on all owners of lands through which the altered highway was laid. It is not sufficient that the record fails to show such service affirmatively. To impeach the validity of the proceeding the failure of service must appear affirmatively. We find in the record no proof of such failure.” State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060. There is nothing before us to show affirmatively that a proper notice was not served on the interested parties. Our conclusion is that the court properly held that the proceedings of the board were valid. • By the Court. — Judgment affirmed.