Pederson v. Chipman

167 Wis. 348 | Wis. | 1918

Siebecicee, J.

The petitioners contend that they were entitled to personal service of the notice prescribed by sec. 1360, Stats. 1913. The supervisors are required by this section to “make out a notice and fix therein a time and place at which they will meet to examine and decide” upon application for laying out the proposed drain, and “such notice shall specify . . . the several tracts of land through which the same will pass; and the petitioners shall cause the notice to be served upon each of the resident owners of said several tracts of land, personally or by copy left at his usual place of abode, . . . and copies thereof shall be posted up in three public places in the town in which the drainage is situated at least ten days before such time of hearing.”

It appears that the drain does not pass through the lands of petitioners and that their lands are not within the limits of the district forming the drain. Manifestly the terms of the statute require personal service of the specified notice only on owners of land “through which” the drain passes. The notice served and posted as shown in the proceeding complied with the statute and conferred jurisdiction on the supervisors to lay out the drain as they did. The petitioners make this application under the provisions of sec. 136YA, Stats., providing that if any officer or body fails or refuses to perform an act required “within the time specified in sections 1359 to 136Yc/'’ Stats., the circuit court shall, unless good cause to the contrary be shown, require performance of the act by the delinquent officer or body. , The trial court properly held that in proceedings of this nature “any one having objection on account of damages to bis own lands must bave those damages determined before tbe expense of construction can be assessed against tbe tracts of lands benefited.” Fraser v. Mulany, 129 Wis. 377, 109 N. W. 139. Since petitioners bad legal notice of tbe proceeding to lay out tbe drain, it was incumbent upon them to proceed diligently to bave tbeir damages, if any, determined and included in tbe expense of construction wbicb was to be assessed against tbe land benefited. Tbe drain was laid out in December, 1913, and petitioners commenced tbeir proceeding in January, 1917. Tbe court correctly beld that sec. 13677i applies “when tbe failure or refusal is to perform tbe act required witbin tbe time specified in secs. 1359 to 1367c/’’ and bence it “must lie somewhere between tbe filing of tbe petition and tbe assessments for construction.” Obviously tbe petitioners present no grounds for relief witbin tbe provisions of this statute. Under tbe facts presented by tbe petitioners, if they were aggrieved by tbe .action of tbe supervisors in tbe assessment of damages they should bave availed themselves of tbe remedy provided by see. 1367 and taken an appeal to tbe county court. It must be beld that tbe petition states no ground for tbe relief demanded and that tbe trial court properly dismissed tbe proceeding.

By the Court. — Tbe order appealed from is affirmed.