Isham v. Smith

21 Wis. 32 | Wis. | 1866

Downer, J.

W as the fence which the respondents, defendants below, removed, in the highway ? Whether it was or not, depends upon the validity of the order of the supervisors by which it is claimed they laid out the new and discontinued the old road. Section 58, ch. IS, R. S., provides that “whenever the supervisors shall lay out, alter or discontinue any highway, they shall cause an accurate survey thereof to be made, when necessary, and they shall make out a description of the highway so laid out, altered or discontinued, and incorporate the same in an order to be signed by them, and shall cause such order to be filed and recorded in the office of the town clerk, who shall note the time of recording the same in the record.” Section 59 provides that the order, or a copy of it, shall be competent evidence in all courts of the facts therein contained, and prima facie evidence of the regularity of all prior proceedings. By other provisions of the chapter, all other papers pertaining to laying out, altering or discontinuing highways are to be filed in the town clerk’s office. It is obvious from these provisions, that the order laying out, altering or discontinuing is the most important part of the record, and that alone by wbicb those interested, are to know whether the supervisors have laid out, altered or discontinued a highway. The order in question contains no description whatever of the highway alleged to have been laid out, or intelligible description of that claimed to have been discontinued. The only way any force or effect could possibly be given to it, would be to suppose the supervisors meant to adopt the description in the petition, both as to the highway therein asked to be laid out and as to that prayed to be discontinued. But we cannot consider that description as a part of the order; for there is no reference in the order to the description in the petition, or even to that in the notice. The supervisors might have granted the prayer of the petitioners in full, or they might have granted it in part and denied it in part; and what they did do from the order we are entirely unable to tell. They failed to incorporate in the order any description of the road laid out. If the description as to the road to be discontinued is such that its boundaries in the order mentioned could be identified by parol evidence, still its discontinuance is conditional upon the opening of the road attempted to be laid out, or the building of abridge on the line of that road across the Catfish, so that if the order is void as to that part relating to the laying out of the road, it is void in toto.

By the Court. — The judgment of the circuit court is affirmed.