Squiers v. Village of Neenah, 24 Wis. 588

Squiers v. Village of Neenah

24 Wis. 588 | Wis. | 1869

Dixox, C. J.

It is contended for the defendant, that there was such an entire want of power in the board of trustees to lay out or to open the street in question, that their act in directing it. to be opened, and the act of the street commissioner in opening it, were wholly void — - such clear departures from duty on the part of the officers concerned, that, though performed in the name of the village, they were in no respect binding upon it, but only affected the officers themselves, who alone must be held responsible as individuals for the damages occasioned. This argument proceeds upon the absence of any provision in the general statute for the incorporation of villages (ch. 70, R. S.), under which this village was organized, for calling together and empaneling a jury to establish the necessity of taking private property for public use, as required by sec. 2, art. xi of the constitution of this state. Without such provision, it is *592contended that the power conferred upon the hoard of trustees by subd. 13, sec. 23 of the statute, to lay out and open streets, avenues, etc., is nugatory and void. However correct this argument might be in a case where the proceedings to lay out and open the street were professedly adverse or in opposition to the wishes of the owner whose land was to be taken, we think it is incorrect and inapplicable in the case now presented. The trustees here did not profess so to act, but with the assent of the plaintiff, who owned the land; and, if they were mistaken-with regard to such assent, still the proceeding was not so entirely without the scope of the powers of the trustees that the corporation may claim exemption from liability for their acts. The trustees were authorized by the statute to lay out and open streets, and, supposing the plaintiff to have assented to the laying out and opening of the street in controversy, then no jury was required to establish the necessity. With the assent of the plaintiff, the trustees had power to lay out and to open the street. Acting upon this supposition, a state of facts was presented upon which the trustees had lawful authority to proceed, or would have had such authority but for their mistake that the assent of the plaintiff was not necessary to the opening as well as the laying out of the street; which mistake, though it may operate to make the proceeding unlawful as against the plaintiff, does not show such a want of power in the trustees as will absolve the corporate body from liability. The trustees undoubtedly believed that the assent of the plaintiff to the laying out of the street was sufficient to authorize them to open it, whether the plaintiff assented to such opening or not. This fact sufficiently appears from the answer of the village in this action, in which it is averred that the premises in question were a public highway, “ which had been duly laid out, by and with the consent of the plaintiff, and at his request; and the acts complained of by the plaintiff *593were simply the opening of said street by the officers authorized by law so to do.” And under some circumstances the assent of the plaintiff to the laying out of the street might have been sufficient to justify the trustees and street commissioner in the steps here taken to open it. If, for example, the plaintiff had assented in writing to the laying out of the street, at the same time agreeing with the trustees upon the compensation to be made (3 Wis. 724), or if he had given a written release of damages, as prescribed by statute (E. S. ch. 19, § 60), then, no doubt, he could not have withdrawn his assent or made any successful resistance to the opening of the street. The proceeding, therefore, although unlawful, was not one which was so known or understood at the time. It was a proceeding on the part of public officers having, under the circumstances supposed, competent authority to act upon the general subject-matter, and whose acts were performed with an honest view to obtain for the public a lawful benefit or advantage. The case presented, therefore, is one falling fully within the principle stated in Thayer v. Boston (19 Pick. 511), and which was quoted with approbation and acted upon by this court in Hurley et al. v. The Town of Texas (20 Wis. 637). The rulings of the court below upon the several instructions asked, as well those given as those refused to be given to the jury, having all been in strict accordance with the views here expressed, it follows that the several exceptions thereto which were taken by the defendant must each and all be overruled.

The objection that the complaint charges a willful trespass, for which the village ought not to be liable, is, we think, unfounded. The use of the word “wanton,” in the complaint, was obviously not intended for any such purpose, and should not be so construed.

And the objection to the further examination of the plaintiff as a witness in his own behalf, for want of notice under the statute, was properly overruled, because *594it came too late. Such, objection should be taken before the party has been sworn and allowed to proceed with his testimony, or it is waived. It is like the objection to the competency of a witness on the ground of interest, where the party objecting is aware of the existence of the interest. He must take it at the earliest opportunity, or be presumed to have waived it forever. 1 Greenleaf’s Ev. § 421.

By the Qourt. —Judgment affirmed.