34 Wis. 443 | Wis. | 1874
Of what value is the constitutional guaranty (sec. 2, art 'XI), that “ no municipal corporation shall take private property for public use against the consent of the owner, without the necessity therefor being first established by the verdict of a jury,” if the owner of the property is to have no notice of the time and place of the meeting of the jury to inquire into and determine-upon the necessity? As determined in Lumsden v. Milwaukee, 8 Wis., 485, 494, the proceeding is strictly adversary; the corporation, representing the public, being the party on the one side, and the person whose .property it is proposed to take, the party on the other. Where such is the character of the proceeding, the law is most justly unrelenting in its abhorrence and unalterable in its condemnation of
The case of Hood v. Finch, 8 Wis., 381, is directly in point
A further objection urged against the maintenance of this action is, that the plaintiff waived or is estopped from now asserting his constitutional right, by reason of the claim made by him, under section 27 of the charter, for greater damages than were offered by the trustees upon the laying out of the so-called street; and the cases of Karber v. Nellis, 22 Wis., 215, and State v. Langer, supra, are cited. Upon the claim so made, a jury was summoned as prescribed by section 28, who assessed the damages of the plaintiff at the sum of fifty dollars ; but it does not appear that the plaintiff ever accepted them. The cases cited hold that where defective proceedings are resorted to for the purpose of laying out a highway, and the land owner accepts the damages awarded, he is estopped from contesting the validity of the highway, and the act may be regarded as a dedication. The claim for damages thus made, or participation in the assessment, ought not to be regarded as a waiver or estop-pel, unless the plaintiff could in those proceedings have raised or taken the objection that the prior proceedings to determine the necessity were defective and void. It is very clear that no such objection could have been taken. The case of Damp v. Town of Dane, 29 Wis., 419, decides this; and the principle there held upon the subject of waiver seems to be that which should govern here. Objecting to the sum offered as damages, and accepting the damages awarded, are acts widely different in their nature, and which can not have the same effect. We are of opinion that the plaintiff did not waive his constitutional right to the verdict of a jury determining the necessity for the taking, and that he is not precluded from asserting or taking advantage of the invalidity of the proceedings in that regard.
By the Court. —Judgment affirmed.