Mueller v. Brotz

Kerwin, J.

1. Two contentions are made upon this appeal: (1) Whether sec. 1263, Stats., applies to the opening of streets in villages; and (2) Whether the contempt proceedings should have been dismissed.

Sec. 1263 by its express language does not apply to villages and cities, but only to towns. This court has never expressly passed upon the question. It seems quite clear from the record and concessions of counsel that if sec. 1263 controls the case the judgment should have been rendered in favor of the appellant, but if not, the judgment of the circuit court should be affirmed, since it seems to be conceded that the proceedings taken by the defendant village under secs. 895 to 902 were regular in all respects. Sec. 1263 is found in ch. 52, which relates to highways and bridges in towns, while secs. 895 to 902, relating to condemnation of lands, authorize cities and villages to condemn lands. Sec. 925— 154 provides the method for condemning lands by cities of the first class for street and other purposes. Sec. 895 authorizes villages to condemn land for street and other purposes. Counsel for appellant, however, rely upon sec. 1347, Stats., which is found in ch. 52, and which provides that the provisions of ch. 52 shall extend to all parts of the state except where special provisions inconsistent therewith have been or shall be made by law in relation to particular counties, towns, cities, or villages. Sec. 922 provides that no law contravening the provisions of this chapter shall be considered as repealing or modifying the same unless such purposes are expressly set forth in such law. Sec. 1347 has been before this court in Paine L. Co. v. Oshkosh, 89 Wis. 449, 61 N. W. 1108, and it was held that

“It was not the purpose of sec. 1347 to make all the provisions of ch. 52 applicable to a city, irrespective of their character, although not in conflict with any provision of its charter. The adaptability of the provision and the plain indication of the language used must be regarded in construing those provisions, regard being had to the subject matter to be affected.”

Counsel for appellant rely upon Smart v. Hart, 75 Wis. 471, 44 N. W. 514; Flanders v. Wood, 24 Wis. 572; and Seymour v. State, 19 Wis. 240. In Smart v. Hart, supra, the commissioners of the village of Waukesha were made defendants because the village and town were co-operating, part of the highway being in the town, and part in the village. But the plaintiff’s property was in the town, so that case, as well as Seymour v. State and Flanders v. Wood, supra, are clearly distinguishable from the case at bar.

We are satisfied that sec. 1263 is not applicable to the instant case. This section prohibits the laying out of a highway through or upon any orchard or garden or any building or' fixture used for the purpose of trade or manufacture, or through or upon any building, fixture, yard, or inclosure used for educational or charitable purposes, or through or upon any other building or fixture where the value of said building or fixture exceeds $75, or through or upon the yard or inclosure necessary to the use or enjoyment thereof without the consent of the owner, or through any cemetery without the consent of the trustees or other officers having the management or control thereof. If this statute were applicable to cities and villages it would be practically impossible to construct streets in villages or cities. .

2. It appears from the record that after the condemnation proceedings were had and payment tendered the defendants took possession of the land pending the contempt proceedings referred to in the statement of facts. Notwithstanding the fact that the court commissioner to whom application for injunction was made denied it, and the court upon a rehearing of the matter before it sustained .the order of the court commissioner, it is claimed, as we understand the argument, that because a stay pending the hearing of the contempt proceedings was asked for the defendants were not warranted in entering and taking possession before the final disposition of the contempt proceedings. On this point, however, it is sufficient to say, as appears from the record, that at the time the entry was made there was no injunctional order in force prohibiting the entry upon the premises, therefore there could have been no violation of an injunctional order. In fact no injunctional order was at any time issued. Even a mere restraining order pending an application for an injunction ceases to be operative at the expiration of the date fixed by the terms of the order. State ex rel. Downing v. Green, 48 Neb. 327, 67 N. W. 162; State ex rel. Plattsmouth T. Co. v. Baker, 62 Neb. 840, 88 N. W. 124.

We are convinced that the court below was right and that the judgment and order appealed from should be affirmed.

By the Court. — Judgment and order are affirmed.