Town of Mineral Point v. Kealy

Keewiw, J. The points relied upon by appellant for reversal will be considered in their order. 1. Sarah Kealy, sister of defendant, lived on the premises in question with the defendant, and it is insisted that she was an “occupant” within the meaning of the statute and that notice should have been served upon her. Sec. 1330, Stats., provides that in case of an encroachment by fences in a highway the order of the supervisors shall require the “occupant of the land” to remove the fences and that they shall cause a copy of the order made requiring such removal to be served upon the occupant. It appears in the case that Sarah Kealy [353] owned a balf interest in tbe property, but that defendant was in possession, managing and operating the farm and having control thereof. The learned trial judge found and held that the defendant was the sole occupant of the land, that he controlled and managed the farm throughout, and was considered by himself and apparently by all who knew the circumstances to be the sole occupant. We are satisfied that the testimony supported the finding of the trial judge upon this point. 2. It is further claimed that the order to remove fences does not specify the extent of the encroachment and is void. The order gives an accurate description of the center line of the highway. The order further provides that the line of said survey is the center of the highway and that said road was laid out three rods wide. Maps appear in the record showing that the defendant maintained crooked and irregular fences in both sides of the highway the whole distance thereof. The order requiring the removal described accurately the land through which the highway passes and that portion of the land in the highway encroached upon by defendant’s fences. The court helow found that the notice was served under and in compliance with sec. 1330, Stats., and we think the finding has support in the evidence. 3. It is further argued that the notice or order was void because’ it required the removal of the fences between the first day of April and the first day of October and some Wisconsin cases are cited by appellant upon this point, hut it is clear they have no application to the instant case. The order did not require the removal between April first and October first. The order provided: “It is therefore ordered by said town of Mineral Point that the said Michael J. Kealy be and he is hereby required to remove said fences beyond the limits of said highway within thirty days from the first day of October, 191J/.P This order was proper and in compliance with sec. 1337, Stats. 4. It is also argued that the town board had no jurisdiction to maintain the proceedings without first having ordered [354] the fences removed tinder sec. 1284, Stats. This position is clearly untenable. Sec. 1284 provides for the giving of notice to an occupant of inclosed, cultivated, or improved land to remove his fences and applies to proceedings had upon opening of the highway after it is laid out, not to proceedings to remove encroachments. Moreover, if any fences existed at the time the highway in question was laid out it must be presumed that the proper notice was given under sec. 1284, Stats. The highway in question is an ancient highway and it cannot be urged in this proceeding that sec. 1284 was not complied with. Olwell v. Travis, 140 Wis. 547, 123 N. W. 111. Upon the whole record we are convinced that the case was fairly tried and no prejudicial error committed and that the judgment below is right and should be affirmed. By the Oourt. — Judgment is affirmed.