120 Wis. 245 | Wis. | 1904
“Whenever the supervisors shall . . . discontinue any highway, they shall make and sign an order therefor, incorporating therein a description of the highway so . . . discontinued, . . . and such order shall be filed and recorded in the office of the town clerk, who shall note the time of recording the same in the record. Such order, together with the award of damages . . . shall be so filed within ten days after the day fixed by their notice or adjournment for*250 deciding upon such application; and in case such, supervisors shall fail to file such, order and award within the ten days-aforesaid they shall be deemed to have decided against such application.” Sec. 1269, Stats. 1898.
Counsel raise the question whether the contents of the-order, as finally written, should not have been agreed upon by the board, acting together, and then signed by them. But for the purposes of this appeal we shall assume that the order-was in the proper form, and was agreed upon by all the members of the board, and then signed by them and filed with the-clerk. Upon such assumption, it is obvious that, the order-being lost and destroyed, its contents could be established by secondary evidence. Being so established, as we assume it was, it is to.have the same effect as though it had never been lost or destroyed. Counsel for the plaintiff contend that such order, so established, raised a conclusive presumption that all requisite" notices of the meeting of the board had been given. In support of such contention counsel cite State ex rel. Iola v. Nelson, 57 Wis. 147, 15 N. W. 14; Jackson v. Rankin, 67 Wis. 285, 30 N. W. 301. But neither of those cases refers-to the section of the statute which must govern in the case at bar, and which declares:
“The order of the supervisors . . . discontinuing any highway . . . and the record or a certified copy thereof, shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to_the making; of such order.” Sec. 1298, Stats. 1898.
That section has been in force for many years, and the decisions of this court are numerous to the effect that the presumption mentioned in the section may be overcome by evidence. Roehrborn v. Schmidt, 16 Wis. 519; Neis v. Franzen, 18 Wis. 537; Williams v. Mitchell, 49 Wis. 284, 5 N. W. 798; State v. Logue, 73 Wis. 598, 41 N. W. 1061; State ex rel. Jenkins v. Harland, 74 Wis. 11, 41 N. W. 1060;; Williams v. Giblin, 86 Wis. 147, 149, 150, 56 N. W. 645.
, “On application made to supervisors for laying out, widening, altering or discontinuing any highway they will make out a notice fixing therein a time and place at which they shall meet and decide upon such application. The applicants, shall, at least five days previous to such time, cause such notice to be given to all the occupants of the lands through which such highway may pass; and in case such application shall be for the discontinuance of the whole or any portion of the highway such notice shall be given to the occupants of' all the lands abutting or touching on such highway the whole or any part of which is sought to be discontinued, which notice shall be served personally or by copy left with or at the usual place of abode of such occupant of such lands, and such notice shall also be posted up in three public places in said town at least ten days before the time of such meeting of' the supervisors.” Sec. 1267, Stats. 1898.
Just what is meant by the whole highway, a portion of' which is .thus sought to be discontinued, may not in all cases be easily determined. In the case at bar it certainly includes, all of the highway on the line between sections 3 and 10. The occupants of lands abutting upon the portion of such highway not sought to be discontinued were entitled to have-notice served upon them personally or by copy just as much as the occupants of lands abutting upon the portion of such highway so sought to be discontinued. It required the whole of such highway to enable public travel to pass from one of' such intersecting highways to the other. Here it is in evidence and admitted that the lands of Henry Koenecke-abutted upon the west end of that highway, on both sides, for a distance of eighty rods, and that he occupied the same, but that there was no proof made before the town hoard that the notice of the meeting of December 14, 1901, required by the section of the statute last cited, had been served on him
“Though the owner of land over which it was attempted to lay out a highway signed the petition therefor and hence was not entitled to notice of the meeting of the supervisors, yet he may avail himself of the want of notice to the public ■and other owners, to invalidate the proceedings.” State v. Logue, 73 Wis. 598, 601, 41 N. W. 1061, 1062.
In that case, Mr. Justice Tayloe, speaking for the court, said:
*252 “The evidence of the- defendant also establishes the fact that the notices of the application for laying out the highway, and of the time and place when and where they would meet to consider such application, which are required to be given by sec. 1267, R. S. 1878, were not in fact given. That the failure to give the notice required by said section is fatal to
By the Court. — The judgment of the circuit court is affirmed.