55 Wis. 664 | Wis. | 1882
Upon the record it is alleged by the learned counsel for the appellants that the board of supervisors, by their adjournment of the hearing of the petition from October 27 to December 1, 1880, lost all jurisdiction of the subject matter of said petition, and that their subsequent order made on said first day of December, laying out the highway, is void. On the other side, it is alleged by the learned counsel for the respondents that these plaintiffs are estopped from questioning the authority of the board to make the order by having consented to the adjournment. This court has repeatedly held that the power to lay out, vacate, or alter a highway by the board of supervisors of a town is strictly a statutory proceeding, and that such proceedings are void in every case where the requirements of the statute are not substantially complied with. Williams v. Holmes, 2 Wis., 129; Austin v. Allen, 6 Wis., 134; Babb v. Carver, 7 Wis., 124; Roehrborn v. Schmidt, 16 Wis., 519; Isham v. Smith, 21 Wis., 32; State v. Langer, 29 Wis., 68; Damp v. Town of Dane, 29 Wis., 419; State v. Castle, 44 Wis., 670.
It seems to us very clear that these decisions settle the question beyond dispute, in this court, that the supervisors can only acquire jurisdiction of the proceeding to lay out a highway by a strict compliance with the statutory direction, and that no consent of the applicants for the highway, or the persons through whose lands the highway is laid out, can validate the proceedings, if the board has failed to comply with such statutory requirements. A land owner, through whose land the highway runs, may, by express agreement, waive his right to compensation for the land taken for the
The case of Roehrborn v. Schmidt, which was approved in State v. Langer, supra, is a clear adjudication that the public notice required to be given by the supervisors before acting upon the petition is jurisdictional, and that a failure to give such notice vitiates the proceedings as to all parties who have not estopped themselves by receiving from the town compensation for their lands taken by said highway. Such public notice is necessary to give the board jurisdiction to proceed to judgment in the matter. As is said in Steen v. Norton, 45 Wis., 412, the board can only acquire jurisdiction of the proceedings by complying with the requirements of the statute; and when the board has acquired jurisdiction of the proceedings, it can only retain such jurisdiction by a compliance with the directions of the statute. This latter proposition was settled in the case of State v. Castle, supra.
In State v. Castle it was held that, under the law as it stood
In the case of Herrick v. Racine W. & D. Co. this court say: “ It appears to follow that if a court cannot restore its own jurisdiction, lost by statutory limit, the parties cannot restore it by consent; for it is not jurisdiction of the person, but of the proceeding. And we are unable to comprehend how that could be done by the implied consent or waiver, which cannot by express consent.” The decision in that case is clearly in point, and must govern this case. Here the board lost jurisdiction of the proceedings after lapse of thirty days from the date fixed in the notice for meeting to decide upon the petition, and no consent of parties could restore such lost jurisdiction. But the learned counsel for the defendants in error insists that the supervisors, with the consent of the persons through whose lands the proposed road is laid out, may lay it out without any regard to the requirements of the statute as to giving public notice of their meeting to decide the question. His argument is based upon the theory that no one has any real interest in having the proceedings carried on in the way provided by the statute except the land owners, and perhaps the petitioners, and that they may therefore waive all the statutory requirements except the presentation of the proper petition. This, we think, is clearly a wrong view of the statute.
As was said in the case of State v. Castle, the supervisors have no power to bind the town for which they act in laying out a highway unless they proceed according to law; and the town cannot be compelled to open the same, nor to pay the damages awarded to the owners of the lands taken for the ' same, unless such proceedings are conducted in the manner
By the Court.— The order and judgment of the circuit court, affirming the proceedings of the town board of supervisors of the said town of Ha&el Oreen in and about the laying out of said highway, is reversed; and the said order of the town board of supervisors of said town of Hazd Oreen, in and about the laying out of said highway, is also reversed.