State Ex Rel. Welch v. Chatterton , 239 Wis. 523 ( 1941 )

Certiorari in three cases begun April 29 and May 2, 1941, to test the validity of an order of the trustees of the village of Maple Bluff vacating a portion of a highway. The relators in the certiorari actions join as plaintiffs in a suit commenced April 29, 1941, against the village and the trustees thereof for declaratory relief and an injunction. There were motions in the certiorari cases to supersede the writs on the ground of want of capacity to sue and that the petitioners failed to state a cause of action. A general demurrer was interposed to the complaint in the suit for declaratory relief. The motions to supersede were denied and the demurrer was overruled with leave to defendants to plead over. Defendants appeal.

The proceedings in each case challenge the validity of the same order and as the complaint in the suit for declaratory relief (McCabe v. Haydon) covers the allegations material to a statement of facts in all the cases, except as to the allegations of interests or rights of the individual petitioners, it alone will be referred to, and the motions to supersede will be considered as having the effect of demurrers.

The complaint alleges the relation of the parties to the subject matter; describes the highway and the portion sought to be vacated, the position of the officers of the respective towns and village, the annexation by the village of a part of the territory of the town of Westport thus bringing a portion of the highway within the village limits; alleges that the lands abutting on that portion of the highway which the board of trustees of the village has attempted to, vacate were at the time owned by the village; that all other lands abutting upon the remainder of said highway are owned by others; that on or about September 12, 1940, pursuant to directions given by the board of trustees, the president of the village filed in the office of the register of deeds of Dane county a notice of intention to file the petition for vacation, and that on or about September 13, 1940, pursuant to the said notice and the direction of the said board, the village president filed the petition with the village clerk for the vacation and discontinuance of a road in the village which was described; that the so-called road as described was within the village, but was a part of the highway extending from the town of Westport to the village; that none of the owners of lots fronting on the remainder of the highway were petitioners in said petition or parties thereto or in any way joined therein; that there were a number of such owners; that the board resolved to act upon the petition at a meeting to be held October 17, 1940, in the village hall at 7:30 o'clock p.m.; that the board agreed that notice of the time when such petition should be acted upon would be posted in three public places in the village not less than three weeks before the date fixed for the hearing and by publication of the notice in the Wisconsin State Journal once a week for three successive weeks before such day; that such notice was given, but no other notice of any kind was posted, published, or served of the hearing either to the occupants of land abutting on such highway, to the plaintiffs herein, or to any other persons; that the board met on October 17, 1940, and purported to adjourn the hearing from time to time until March 6, 1941, at which time the resolution to vacate and discontinue the portion of the highway was adopted; and that the vacated portion is part of a highway extending from the town of Westport through the village into the town of Westport, connecting Highway No. 113 on the east to Farwell drive near Lake Mendota on the west. A certified copy of the resolution, accompanied by a map showing the location of the highway and the portion sought to be vacated, was filed in the office of the register of deeds of Dane county on March 27, 1941. It is alleged that notwithstanding the invalidity of the proceedings and the order for discontinuance, the defendants threaten to barricade and close up the same to public travel and to tear up the roadbed for such portion of said highway. Plaintiffs ask for judgment that the proceedings be declared void and that the defendants and their successors in office be enjoined from discontinuing or closing the highway to public travel. Defendants' demurrer and motions to supersede were overruled. The following opinion was filed December 2, 1941: The sufficiency of the allegations in stating a cause of action depends upon the necessity of appellants doing things admittedly left undone and that depends upon which of two statutes is applicable to vacation proceedings which affect a highway which enters and serves several communities. Appellants admit that in the proceedings taken no attempt was made to comply with ch. 80, Stats., and that they placed their reliance solely on sec. 61.38, Stats., as a guide. No notice was given to those whose property was outside of the portion proposed to be vacated even though it abutted on the remainder of the highway. The trial court concluded, as we do, that all the respondents were entitled to be heard and that the pleadings state a cause of action.

The decision upon this appeal depends on whether the village board in vacating this highway is limited and governed by sec. 61.38, Stats., which deals with discontinuance of streets in a village or by sec. 80.12, which concerns discontinuance of a highway "extending from a town to a city or village." It is apparent that the legislature contemplated the existence of a village street "pure and simple," as in a class by itself and roads extending over boundary lines as in another class. The highway in question falls in the second class. A part of it is in a village but it extends across the village boundary to a town.

In dealing with joint town-village highways the law provides that whenever it shall be deemed necessary to discontinue such a highway or any part thereof, proceedings therefor may be had under sec. 80.11, Stats. Neither that section nor sec. 80.12, was followed by appellants because they assumed this was a village street completely under the jurisdiction of the village. The proceedings by appellant under sec. 61.38 are seriously challenged on the ground that there was no compliance with the provisions of that section which require that in vacation proceedings a petition must be signed by "owners of more than one half of the frontage of the lots and lands abutting on that portion of the remainder thereof, which lies within two thousand six hundred and fifty feet from the ends of the portion proposed to be discontinued." The further point is made that appellants failed to comply with the requirements of notice and timeliness of final action and that the adjournments taken by the board were illegal.

There were owners of property within the limit prescribed by sec. 61.38, Stats. No notice was given them. Appellants attempt to justify this failure on the ground that the words "remainder thereof" mean remainder in the village and that if the portion sought to be vacated goes up to the boundary of the village, the consent of those living outside the village limits is not essential.

Just how to give full scope and meaning to that phrase "remainder thereof, which lies within two thousand six hundred and fifty feet from the ends of the portion proposed to be discontinued" may present an interesting question. That section provides for proceedings to discontinue a "road, street, slip, pier, lane or alley," and undoubtedly there may be such lanes, alleys, or streets so completely within the jurisdiction of an incorporated village as to give the village complete control but this is not such a case. The questions presented by this appeal are answered when it is found that the highway, a portion of which is sought to be discontinued, is one extending over a municipal boundary from a town to a village. In view of the conclusion that the proceedings here relate to a continuous highway between two separate political communities, secs. 80.11 and 80.12, Stats., are held to be the controlling law upon the subject. And the proceedings taken, so far as affected by sec. 61.38, need be no further pursued. While the terms of sec. 80.11 refer to actions by towns, it has been made applicable to villages as well as to towns by sec. 61.68.

The respondents Welches and McCabes live in towns adjoining the appellant village and have alleged their use of the highway both to and from their work, the park, and the school. The respondent towns have made valuable contributions to the purchase of lands now used as a park and the residents of these towns use this highway to reach that park. Under the law governing proceedings in a case of this kind we are of the opinion that the interest of the respondents disclosed by the pleadings is such that they may be heard as to the legality of the acts by which appellants propose to close a highway of such convenience to respondents as to amount to a practical necessity. By the Court. — Orders affirmed, and cause remanded for further proceedings according to law.

A motion for a rehearing was denied, with $25 costs in one case only, on February 10, 1942.