State v. Halvorson

| Wis. | Oct 20, 1925

Owen, J.

The sole question is whether the road is a public highway, at least where it crosses the land of the defendant. If it be a public highway, it had its inception as such by virtue of the proceedings of the town board laying out the same in 1898. Those proceedings were con-cededly irregular, and if it be a highway it must be by virtue of the provisions of sec. 80.01, Stats., that all highways which shall have been laid out by the supervisors of any town and recorded, “any portion of which shall have been opened and worked for the term of three years, shall be deemed to be and are hereby declared to be legal highways so1 far as they have been so opened and worked, notwithstanding the law may not have been in all respects complied with in laying out the same.” Before considering whether this road became a public highway by virtue of this provision, it is necessary to refer to the provisions of sub. (2), sec. 80.32, that “Every highway shall cease to be a public highway at the expiration of four years from the time it was laid out, except such parts thereof as shall have been opened, traveled or worked within such time.” It will be seen that, by virtue of this provision, unless the highway was opened, traveled, or worked within four years after it was laid out it must be deemed to have been abandoned.

As appears in the statement of facts, the town board did nothing for a period of four years in the matter of opening up the road. It was concededly a private way at the time of the order of the town board laying it out. While it was traveled, it was by permission and acquiescence on the part of the owners of lands across which it ran. They maintained gates for their convenience which were opened and closed by those using the road. At times there were as many as six gates along the line of this road. While the maintenance of gates along the line of travel is not necessarily inconsistent with the existence of a private easement (Schroeder v. Moeley, 182 Wis. 484" court="Wis." date_filed="1924-01-15" href="https://app.midpage.ai/document/schroeder-v-moeley-8194250?utm_source=webapp" opinion_id="8194250">182 Wis. 484, 196 N. W. 843), their presence is inconsistent with the existence of a public highway. Williams v. Giblin, 86 Wis. 147" court="Wis." date_filed="1893-10-17" href="https://app.midpage.ai/document/williams-v-giblin-8184355?utm_source=webapp" opinion_id="8184355">86 Wis. 147, 56 N. W. 645; Hunter v. C., St. P., M. <& O. R. Co. 99 Wis. 613" court="Wis." date_filed="1898-05-24" href="https://app.midpage.ai/document/hunter-v-chicago-st-paul-minneapolis--omaha-railway-co-8185930?utm_source=webapp" opinion_id="8185930">99 Wis. 613, 75 N. W. 977. The town board did nothing prior to the service of its order on the defendant Halvorson in 1921 to cause the removal of these gates, and nothing was done, at any time to change the character of the road from a private to a public way. It must be held, therefore, that it was not opened up or traveled as a public highway within at least four years of the date of the order of the town board of supervisors laying it out as a public highway.

There is some claim made that public funds were expended on this road. If there were any such they were very insignificant in amount, and the evidence is far from satisfactory that any public funds were ever expended. However, to prevent an abandonment it must appear that public funds were expended within four years from the date of the order laying out the highway. The burden is on the town to show that the locus in quo was a highway. Con-cededly the records introduced for that purpose are not sufficient. In order to constitute it a highway the town must rely on the provisions of sec. 80.01, and in order to invoke the curative effect of the statute it must show that town funds were expended on the road within four years of the date of the order. The provisions of that statute do not operate to establish a highway once abandoned. Williams v. Giblin, 86 Wis. 147" court="Wis." date_filed="1893-10-17" href="https://app.midpage.ai/document/williams-v-giblin-8184355?utm_source=webapp" opinion_id="8184355">86 Wis. 147, 56 N. W. 645. Two or three witnesses testified that they did some work on the road in 1906, 1907, 1913, and 1916 at the direction of the pathmaster and for which they were paid out of town funds. Taking this testimony at its face value, although when considered in connection with their entire testimony it is not very clear that they were in fact paid with town funds, it avails the town nothing, because the money was not expended within four years after the order laying out the highway.

The witness Halvorson testified on the trial in 1922 that “about twenty years ago” he was road commissioner for about five years and that during the time he was road commissioner he permitted one Martin Halvorson to work out his road taxes on this highway. It will be noticed that he testified that he was road commissioner “about twenty years ago.” If it were exactly twenty years ago it would have been in 1902. The order laying out the highway was made July 11, 1898. We will assume that if Martin Halvorson had worked on the road prior to July 11, 1902, it would have prevented the abandonment. However, the record fails to show that he did any work on that highway prior to that date. As the burden is on the town to establish the highway, to accomplish which it must affirmatively show that the highway was opened, traveled, or worked within four years from the date of the order, it has plainly failed to establish the existence of the highway.

The trial court found that “shortly after said highway was laid out, Olaus C. Wig, who then owned the land now owned by the defendant, executed a release of damages to the land on which said gate was located by reason of the laying out of said highway.” We do not know just what the trial court had in mind as the legal result of that finding, but probably he considered that the grantees of said Wig were estopped to challenge the existence of a highway over this land. It is true that one who accepts damages for the laying out of a highway over his land is estopped from attacking the validity of the highway. State ex rel. Jenkins v. Harland, 74 Wis. 11, 13, 41 N.W. 1060" court="Wis." date_filed="1889-03-12" href="https://app.midpage.ai/document/state-ex-rel-jenkins-v-harland-8183078?utm_source=webapp" opinion_id="8183078">41 N. W. 1060, and cases there cited. Granting that this estoppel extends to his grantors, it by no means follows that even he is estopped from claiming an abandonment of the highway. When the highway is once legally abandoned, it seems plain that its status as a legal highway can be challenged by any one. We conclude that the record fails to establish the existence of a public highway at the place where the gates were maintained, and that the judgment should be reversed.

By the Court. — Judgment reversed, and cause remanded with instructions to dismiss the plaintiff’s complaint.