Peterson v. Board of Supervisors

1 Reported in 272 N.W. 391 . The town board of the town of Chisago Lake laid out a town road through the farm of appellant and others in the town. He appealed to the district court. The action of the town board was sustained, and he appeals from the order denying a new trial. Appellant owns the southeast quarter of section 14, township 34, range 20, Chisago county, this state, except one and a half acres in the southwest corner thereof, owned by a school district. On the west side of the farm is the Center City-Almelund highway. For many years a road called the Taylors Falls-Furuby road has existed, running east from the Center City-Almelund road on the south line of appellant's farm 208 feet, thence northeasterly to a point 407 feet west of the northeast corner of the southeast quarter of the southeast quarter. On June 6, 1935, a petition to establish a new road over appellant's farm four rods wide on the 1/8 section line, that is, on the line dividing the north two forties from the south two, running east from the Center City-Almelund road on the 1/8 section line not only through said section 14 but also on the same line through section 13 until a short distance past the line dividing the east half from the west half of the southeast quarter of the southeast quarter thereof, thence southeasterly until it crosses the Taylors Falls-Furuby road. The petition also asked for the vacation of the latter road where it deviates from the new road to be established. The hearing was set for June 18, 1935, at *Page 457 2 o'clock p. m. at the west end of the proposed road where it was to join the Center City-Almelund road. The town board and clerk met with some 20 or 30 interested parties, among whom were appellant and his attorney. The town board walked over and examined the proposed road and heard those who wished to be heard. Appellant is almost totally deaf; but his attorney spoke for him and stated that he appeared specially to object to the jurisdiction of the board on the grounds that the petition was not proper and notice had not been served on appellant. The petition was granted, and appellant duly appealed to the district court. The court made findings affirming the action of the town board in laying out the new and vacating the old road. Counsel for appellant conveniently groups his attack upon the order on three propositions, viz.: (1) The evidence does not support the finding that appellant waived service of notice of the hearing; (2) the town board was without power to entertain this petition, having in effect denied another petition for the same road petitioned for within a month previous to granting this; (3) the town board was without jurisdiction to entertain proceedings involving a designated county aid road. The court found that the notice of hearing was not served on appellant. It appears that he lives on this farm but was away from home on the day the notice was served. A relative of appellant, Vernon Johnson, operates the farm for appellant and occupies a dwelling thereon, a short distance from the home of appellant, and the notice of hearing was served, on June 6, 1935, by leaving a copy with the wife of Vernon Johnson at the house of his usual abode. Appellant received word of this service the same evening. The court then found: "That at the time and place designated in said notice of hearing said board met to consider and act upon said petition and at said time and place appellant appeared with his attorney, A.M. Bullis; appellant stated that he appeared specially and objected to the granting of the petition on the ground that jurisdiction had not been obtained because of a defect in the notice and that no service of *Page 458 the same had been made on appellant; that subsequent to such special appearance and before respondent had taken any action upon the objections made on said special appearance, appellant by his attorney presented a plat to said board of his premises and stated and presented his reasons why on the merits the petition should not be granted." We think this finding is well sustained by the evidence. After making his objection to the jurisdiction, the attorney was asked by the board if he had any other objections and answered: "Yes. Mr. Peterson is very much opposed to the road." The attorney then went to his car, produced a plat of appellant's farm, and pointed out in what respects the road was a detriment and a damage to this property; he called attention to the pasture, the various fields, and the fences. One witness testified that the attorney for appellant occupied more time at the hearing than any of the other property owners affected by the road petitioned for. The petition covered a subject matter within the jurisdiction of the town board. But jurisdiction to lay the road over appellant's farm could be had only by service of notice of hearing or by voluntary appearance and participation in the hearing. The court was of the opinion that, even though there had been good service made on the occupant Vernon Johnson, it was not effective as to appellant, who was both the owner and also an occupant of the farm. Had appellant not appeared at all or had he merely made his special appearance, the order laying out the new and vacating the old road, so far as concerns appellant's farm, would have been a nullity. But, when he or his attorney went into the merits of the road and discussed with the board the injury or damage resulting to the farm, he waived the service of notice. The notice is only for the purpose of enabling the property owner to be present at the hearing and protect his interest. It should not take much to waive the service of the notice where it appears that he got knowledge thereof the day it was intended he should have been served, that he had ample time to secure an attorney to be present with him, and to prepare a plat for the purpose of convincing the board of the detrimental *Page 459 effect of the proposed road upon his rights. This road affected at least five other farms. If appellant insisted on the technical objection that he had not been served, he ought not to have gone into the merits or demerits of the road. Had the town board then understood that appellant insisted on being served before submitting the petition on the merits, an adjournment could then have been ordered until such time as good service could have been made of the notice upon appellant. It is not likely that the town board would have laid out any part of the petitioned road unless or until that part traversing appellant's land was included. The town board is not a court. It is not required to rule upon objections or special appearances. It does not swear witnesses. In matters of laying out roads it functions as a legislative body, it examines the locality in question, and discusses with interested persons whether or not public convenience and welfare requires the road petitioned for. We think, therefore, the strict rules pertaining to a waiver in a court proceeding are not applicable. It may not be quite accurate to speak of the service of notice of the hearing of a petition to lay a road over an owner's land as a right. But, however designated, notice may be waived. Kieckenapp v. Town of Wheeling, 64 Minn. 547 , 67 N.W. 662 ; Anderson v. Town of Decoria, 74 Minn. 339 , 77 N.W. 229 ; Hurst v. Town of Martinsburg, 80 Minn. 40 , 82 N.W. 1099 ; Bruns v. Town of Nicollet, 181 Minn. 192 , 231 N.W. 924 . Appellant relies on McCauley v. Town of McCauleyville, 111 Minn. 423 , 127 N.W. 190 , 20 Ann. Cas. 828 , but that is not in point, for there the owner did not appear; she merely filed her protest against the laying of the road, on the ground that the board was without jurisdiction. Here appellant was represented at the hearing by an able attorney, and it must be assumed that he voluntarily waived the notice — a known right to him — when he went into the merits of the road and its effect upon the land. It cannot be assumed that appellant's attorney was ignorant of appellant's right and did not voluntarily go into the merits of the petition. Subd. 8 of § 2583 provides: "The determination of a town board refusing to establish, alter or vacate any road shall be final, unless appealed from, for one *Page 460 year from the filing of its order; and no petition for establishing, altering or vacating such road shall be acted upon within the time aforesaid." A petition was presented to the town board on May 16, 1935, for laying out a road over practically the same part of appellant's property as in this petition, but toward its easterly terminus the description was erroneous and impossible. The hearing thereon was set for May 29, 1935, but before that date the board discovered that the signers were not sufficient in number and returned the petition to the petitioners for additional signatures. The board did not meet on May 29. When the additional signatures were obtained the petition was again filed on May 27, 1935, a hearing ordered for June 7, 1935, and notices duly served and posted. On June 7 the board continued the hearing to June 18, 1935, for the same place and hour already set for the hearing of the instant petition. When the board met on June 18, 1935, the instant petition was first taken up, heard, considered, and granted. And thereafter the other was denied. Since the first petition was not considered when set for hearing on May 29, but ignored by the board, it is claimed that this amounted to a denial. We think this is too technical. The board returned the petition without action so that the petitioners might procure sufficient signatures to give the board power to act. It may be assumed that, after the petition was returned to the board and notice served for hearing on June 7, the board discovered the error in the description of the first petition, when on June 6 the last petition was filed, and thereupon concluded to have the hearing of the two at the same time. Laying aside all else, it would seem that, where a town board has set the hearing of the two petitions for a road at the same place and hour, it may select which of the two it will entertain, hear, and decide first, there being no statute to the contrary. So no further consideration need be given the so-called first and second petitions. There was no action thereon until after the one before us was granted. However, appellant claims that the first petition, filed May 16, was denied, through inaction in virtue of this provision in subd. 6 of § 2583: "In case *Page 461 said board does not file such order within 20 days, it shall be deemed to have rejected the application." The finding is well supported that a petition for a road, identical with the petition granted, insofar as its course over appellant's farm, was presented to the board May 16, 1935, and that notice of hearings thereon for May 29 was served and posted; but sometime prior to May 27 it was returned to the petitioners because the board deemed there were not enough proper signatures. Additional signatures were procured and the petition filed with the board on May 27, 1935, whereupon the board caused notice to be served and posted of a hearing thereon June 7, 1935. On June 7, as already stated, the hearing was by the board continued until June 18, at the same place and hour as the hearing of the last petition filed June 6, 1935. It is clear that the petition filed May 16 is the same petition filed May 27 and denied June 18, 1935, directly after the one filed June 6 was granted. There were really no more than two petitions, and the board filed its order granting the one last filed before it denied the one filed first so the provision quoted above from subd. 6 of § 2583 could not be applied. The board and the petitioners concluded or assumed that more signatures were needed on the petition presented on May 16, in order to give the board the power to act, and so it was returned to the petitioners to procure the needed signatures. All took it for granted that no hearing could be had on the 29th of May, two days after the petition was returned with additional signers. There is no evidence that any interested person appeared on May 29. The board did not meet. All took for granted that a new start must be made. And so when the petition was again presented with the additional signers a hearing was ordered. The power of the board to adjourn from the 7th to the 18th of June cannot be questioned. Baldwin v. Township of Rosendale, 110 Minn. 87 , 124 N.W. 641 . Neither the findings nor the evidence warrants the claim that there was by inaction a denial of a previous petition within a year prior to the presentation of the petition granted. Therefore State ex rel. Thompson v. Eggen, 206 Wis. 651 , 238 N.W. 404 , 240 N.W. 839 , has no application. *Page 462 The claim that the town board was without power to act under § 2583 because it had been designated a county aid road is readily disposed of by the absence of proof that it had been so designated under the provisions of § 2560. The order is affirmed.