74 Wis. 11 | Wis. | 1889
The appellant sued out a writ of certiorari from the circuit court of Waukesha county, directed to the supervisors and town clerk of the town of Pewaukee, requiring them to send up the proceedings of the supervisors of said town in laying out a highway in said town across the lands of the said relator. The clerk and supervisors of said town made return to said writ, setting out at length the proceedings had by said supervisors in laying out the highway referred to in said writ. After the return was made and filed, the respondents, by their attorney, moved the court to quash the writ for the reasons stated in the motion. After hearing the motion, the circuit court quashed the writ, and the proceedings were dismissed with costs in favor of the respondents. • From the judgment dismissing the writ with costs the relator appeals to this court.
The counsel for the appellant claims that the judgment
The return to the writ of certiorari sIioavs that the supervisors made an order laying out said highway on the day fixed for the hearing of the petition asking for the same. Such order recites that the proper notices were given, and that they were satisfied such notices had been served and posted as required by law. This order of the supervisors is prima facie evidence that the proper notices were posted and served. See sec. 1298, R. S. No evidence was offered by the relator to overcome the presumption raised by the statute, nor did the relator deny, or offer to deny, the facts set forth in the return to the writ. That the order is prima facie evidence that the proper notices were given, see Williams v. Mitchell, 49 Wis. 284; Roehrborn v. Schmidt, 16 Wis. 519, 522.
The record shows that the order laying out the highways was made and filed as required by the statute; and the only other objection to the proceedings is that they did not make an award of damages to the relator at the same time, and file the same with the order laying out the high-AAray, as required by the statute (see sec. 1270, R. S.); nor did they give the notice to adjourn the hearing to settle the award of damages, in the manner prescribed by sec. 1268, R. S. Whether, when the supervisors have regularly made an order laying out a highway on the day fixed for that purpose, they must also on that day make their award
It also appears from the record that the relator is the only person interested in the award of damages; his lands being the only lands taken by the public for such highway. It is apparent, therefore, that no other person can now avoid the proceedings of the supervisors for the irregularity in awarding damages to the relator, if there be such irregularity. Tie having waived such irregularity, the proceedings are binding upon all other parties, and the highway is regularly laid out.
By the Court.— The judgment of the circuit court is affirmed.