State ex rel. Milwaukee, Lake Shore & Western Railway Co. v. O'Connor

78 Wis. 282 | Wis. | 1890

LyoN, J.

The validity of the petition or application for the highway, of the notice of the meeting of the supervisors to decide upon the same, of the service of such notice, and of the order laying out the highway, is challenged by the learned counsel for the railway company, the appellant, on various grounds.

1. It is claimed that the description of the proposed • highway in the petition is insufficient. "We think otherwise. It may readily be ascertained therefrom, and from the references therein to the recorded plats of additions to - the village of Eagle Eiver, that it calls for an extension of Division street in that, village across the right of way of. the railway company. But it is said the petition designates the extension as a point, and, because a point has neither length nor breadth, no line of- any proposed highway is described therein. It is true in mathematics that a point has no magnitude, but in common parlance it sometimes has. A city is often spoken of (perhaps inaccurately) as a commercial point, a manufacturing point, or as a point on a given line of travel.

It is also claimed that the petition is defective because it fails to specify the width, length, and direction of the proposed highway. The statute does not require that the width and length thereof shall be specifically stated therein, and the petition gives the termini of the line, which of course determines direction. See E. S. sec. 1265. • It is sufficient if the line of the proposed highway is so described that it may be located without difficulty by reference to the data furnished by the petition itself. Jackson v. Rankin, 67 Wis. 285. "We think this petition meets the requirements of the rule.

2. It is further maintained that the notice of the supervisors’ meeting is insufficient, for the reasons urged against the validity of the petition, and for the additional reason that it fails to specify the several tracts of land through which the proposed highway may pass, as required by sec. 1267, S. & R. Ann. Stats. Inasmuch as but one tract of land is included in the proposed highway, to wit, a portion of the appellant’s depot grounds, and inasmuch as the government subdivisions of which the same is a part are specified, we can perceive no valid grounds for this objection.

But the petition asks that Division street be declared a public highway, and counsel maintains that because it does so all tracts of land abutting that street should be specified in1 the petition, and that notice of the supervisors’ meeting should be served upon each occupant thereof. Presumably Division street is a public highway, and was such when the petition was presented. The request to have it declared a public highway, and the order of the supervisors so declaring it, are entirely nugatory and harmless. We think the notice sufficient, within the rule of Jackson v. Rankin, 67 Wis. 285, and State ex rel. Iola v. Nelson, 57 Wis. 147.

3. The notice was served in due form on the station agent of the railway company who resides in Eagle River. Counsel claims such service invalid, but concedes that,, had it been a summons in an action against the railway company instead of the notice, the service would have been sufficient under sec. 2637, R. S., as amended by ch. 552, Laws of 1887 (2 S. & B. Ann. Stats, p. 1512). We hold that, for the purposes of service of such a notice, the station agent at the depot on the grounds through which a highway is proposed to be laid is the occupant of such grounds within the meaning of sec. 1267; and further that service upon such agent is also valid if it would be valid were it a summons in an action against the railway company. These rules require no discussion, for it is not so important that they Re fortified by argument and authority as it is that the practice in such cases be definitely settled.

4. Before laying out the highway, the supervisors caused the same to be surveyed by the county surveyor, and substantially incorporated his survey in the order laying out the highway. The description thereof in the order is more definite and certain than in the petition, but it describes the same line of highway, except it extends the line about twenty rods west of the western terminus of the proposed highway. This was done at the request of the owner of the land over which the highway was so extended, who released all claim for damages therefor. This does not invalidate the order. It was simply an acceptance by the supervisors of a right of way dedicated by'the owner to the public use. The highway actually laid out was that called for in the petition. "We conclude that the proceedings are in substantial compliance with the statute, and that the highway in question was regularly laid out and established. The learned circuit judge so held.

By the Gov/rt.— The judgment of the circuit court is affirmed.