City of Chippewa Falls v. Hopkins

109 Wis. 611 | Wis. | 1901

WiNSLow, J.

Many exceptions were taken'by the appellant, but there are but four questions which require discussion.

1. Was it shown that the commencement of this action was properly authorized by the common council? The action was commenced by the city attorney, the complaint being verified by the acting mayor. By the charter of the city (ch. 164, Laws of 1885), the general control of city affairs, including removal of obstructions from streets, is vested in the common council by the usual provisions. By sec. 5 of subch. IY of the charter it is provided that “ the city attorney shall conduct all the law business of the corporation and of all departments thereof, and all other law business in which the city shall be interested when so directed by the common council.” Prior to the commencement.of this action, on March 8,1898, the following resolution was passed by the common council: “ That the city attorney be, and he is hereby, authorized' and directed to commence an action against Wilson Hopkins for the removal of an obstruction placed by him across the extension-of Greenville street in said city.” It is claimed by appellant that the commencement of an action like the present is included under the head of “ other business,” and hence that it must be directed by the common council; that the alleged highway in question is not in any proper sense an “ extension ” of Greenville street, but that the highway attempted to be opened by the city in 1895, without compliance with the provisions of law, must be considered as the extension of Greenville street referred to in the resolution.

Conceding for the sake of the argument, but not deciding* that the bringing of the action must first be authorized by the common council, we think that the resolution of the council, when fairly considered, is sufficient authority. It was amply proven that the proceedings by which the council attempted to lay oiit the supposed extension westward of Greenville street in 1895 were fatally defective, because there was never any notice given to the landowner of the proposed taking, no establishment of the necessity of condemnation by a jury, and no damages ever awarded or paid, and that the same was permanently closed up by the landowner in 1897. Thus it is evident that this supposed extension of Greenville street did not exist in March, 1898, either defacto or de jure. Reference to the map shows that any person traveling on Greenville street in a westerly direction might, and probably would, consider the disputed highway as an extension of Greenville street to the west and south. "While- the highway itself has not been named, and its designation as an extension of Greenville street is not perhaps entirely accurate, there seems no doubt but that the council intended to refer to it in the resolution above quoted. Neither strict nor technical construction should be applied to the terms of such an authority.

2. Are the findings of fact sustained by the evidence ? There was considerable evidence both ways upon these questions, especially upon the question as to the amount of travel over the disputed highway, and the question as to whether such travel was confined to a single well-defined track. It would hardly be profitable to review it, and it must be sufficient to say that examination of the proof shows that there was ample evidence to sustain the findings.

3. Has the common-law principle that a highway may be established by twenty years’ user been abolished in. this state? Ey sec. 85, ch. 19, R. S. 1858, it was provided that, “all roads not recorded which shall have been used as public highways twenty years or more, and roads not recorded which shall hereafter be used ten years or more, shall be deemed public highways.” This section was repealed, in the Revised Statutes of 1878, before either the twenty-year period or the ten-year period had elapsed as to the highway in question here, and the following provision took its place (R. S. 1878, sec. 1291): “All roads not recorded which shall have been or shall be used cmd worked as public highways ten years or more shall be deemed public highways.” The appellant’s contention is that by this latter statute the common-law principle that a highway may be established by twenty years’ user alone (if any such principle exists) is abolished in this state, and that since .the passage of that statute no highway can be created by user alone, but that working must be combined therewith. With this contention we cannot agree. In Lemon v. Hayden, 13 Wis. 159, and in Wyman v. State, 13 Wis. 663, it was held in effect that the use of a definite highway by the public for twenty years with the assent of the owner was conclusive evidence of dedication, and in the first case cited it was further said that the first clause of the section quoted from the Statutes of 1858 was simply declaratory of the common law. The principle that twenty years’ user alone is sufficient to establish a highway by user is either expressly or impliedly recognized in the following subsequent cases in this court: Hanson v. Taylor, 23 Wis. 547 (overruling State v. Joyce, 19 Wis. 90); State v. Castle, 44 Wis. 670; Pewaukee v. Savoy, 103 Wis. 271; Stricker v. Reedsburg, 101 Wis. 457.

The proposition that a well-established principle of common law has been abrogated by the repeal of a statute which was simply declaratory of the common law is novel, to say the least, and will not bear examination. If a law should be passed declaring that an assault and battery was a tort and that the injured party should have a cause of action to recover damages therefor, we do not suppose it would be argued that the repeal of the law would put an end to all civil liabilities for assault and battery. By section 13 of article XIY of the constitution of this state such parts of the common law as were in force at the time of the adoption of the constitution continue a part of the law until altered or suspended by the legislature. An act which is simply declaratory of a common-law principle gives no substantial right. How, then, can its repeal take away any substantial right ? The question seems to answer itself. An analogous question arose in the case of Wilson v. Henry, 40 Wis. 594, where it was argued that the statutory definitions of the conditions necessary to establish adverse possession under paper titlé excluded all other conditions; but it was. held by this court that whatever would constitute adverse possession under paper title outside of the statute (i. e. at common law) still constitutes it, notwithstanding the statutory definitions. "We conclude that the repeal of sec. 85, ch. 19, R. S. 1858, and the enactment of sec. 1294, R. S. 1878, did not alter or suspend the common-law rule that a highway may be created by user alone for twenty years, but simply added the requirement of working to make complete the operation of the ten-year statutory user.

4. It is claimed that the old road was discontinued by the laying out and, opening of the supposed new highway in 1895, or at least that the city is estopped from now claiming the existence of the old highway. Neither of these claims is tenable. As to the first proposition, it is sufficient to say that the supposed new highway was never a highway in fact, and that to constitute a discontinuance of a highway by the laying of another to accomplish the same purpose, that other must necessarily be laid. This seems self-evident.. As to the second proposition, we have found no acts of sufficient significance on the part of the defendant, resulting from the city’s action, to justify the application of the principle of estoppel, and furthermore no such defense was pleaded.

By the Court.— Judgment affirmed.