Summary
In State Highway Comm. v. Grant (1959), 7 Wis.2d 308, 312, 96 N.W.2d 346, a similar issue was before us, and we held that it was not necessary to have a jury verdict for the determination of the necessity of taking because the acquisition of the property was by the Highway Commission and not the city whose board acquires the property.
Summary of this case from Grunwaldt v. State Highway CommOpinion
April 9, 1959 —
May 5, 1959.
APPEAL from an order of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Affirmed.
For the appellant there was a brief by John T. Roethe and Thronson, Roethe Agnew, all of Edgerton, and oral argument by John T. Roethe.
For the respondent State Highway Commission there was a brief and oral argument by Howard H. Moss of Janesville, special counsel.
For the respondents Grant there was a brief by Schubring, Petersen, Sutherland Axley of Madison, and oral argument by R. J. Sutherland.
Proceeding to acquire title to certain lands for highway purposes. In order to provide for the relocation of State Trunk Highway 51 through the city of Janesville the State Highway Commission determined that it was necessary to acquire title to lands owned by Curtis A. Grant and Hazel H. Grant. The property was leased to William J. Cronin, and he in turn had subleased portions thereof to Herman Krause, Harold D. Brown, and Lawrence J. Hughes, a partnership d/b/a Brown Hughes Sales Service; Clarence Thompson, d/b/a Thompson Electronic Company; and Lowe Sales Service, a Wisconsin corporation. In the proceeding the real estate was described in two parcels which were referred to as parcel "A" and parcel "B." Fifield Lumber Company was the owner of a strip of land five feet in width and approximately 62 feet in depth located between the two parcels.
Pursuant to the provisions of sec. 84.09(3m), Stats., the State Highway Commission directed the land acquisition board of the city of Janesville to proceed under the provisions of sec. 83.07 to acquire the land. An application was made to the county judge of Rock county and notice was given as required by statute to all of the above-named persons. The application was by the commission in which the State Highway Commission of Wisconsin by the land acquisition board of the city of Janesville was designated the plaintiff and the others above named were designated as defendants.
William J. Cronin, the lessee, filed an answer setting out his interest under the provisions of his lease, and denied that certain requisite steps had been taken, principally a determination by a jury of the necessity of acquiring the property. The answer also included a claim for damages. Motions were made by the parties before the county judge, one of which was a motion by Cronin to dismiss the proceedings for the reasons set forth in his answer and for the reason that the county judge had no jurisdiction to proceed. The county judge declined to act on any of said motions, stating he was not acting as a court but merely as the statutory appraiser to make an appraisal. Testimony was taken and on May 1, 1957, the county judge made and filed an award of damages in the amount of $56,000 payable to the defendants. A check naming all of the defendants as payees in the amount of the award was tendered and refused. Thereafter Cronin served and filed a petition and appeal as follows:
"Please Take Notice that the undersigned defendant, William J. Cronin, does hereby appeal to the circuit court of Rock county from the decision, judgment, and certificate made by Chester H. Christensen, county judge, in the above entitled matter and does hereby petition the circuit court of Rock county for a review of the entire proceedings in the above entitled matter, heard before Chester H. Christensen, county judge, and for a determination of the defendant's rights and damages in the above entitled action, as set forth in his answer to the petition, which answer is on file with said Chester H. Christensen, as county judge.
"And the undersigned defendant, William J. Cronin, does hereby petition for a determination of his rights and damages under the lease on file with Judge Chester H. Christensen, as county judge, and asks that the circuit court of Rock county determine said rights and damages pursuant to ch. 32 of the Wisconsin statutes; that this appeal and petition be filed in the office of the clerk of the circuit court and that a hearing be held to determine the necessity of the taking of said real estate by the plaintiffs for city-street purposes, as more fully set forth in the answer filed with said county judge by this defendant."
Motions were made in circuit court by the Grants and by the state to dismiss Cronin's appeal upon the ground that he is not within the category of persons authorized by law to appeal. Cronin then moved for summary judgment dismissing the entire proceedings and vacating the appraisal and award of the county judge upon the following grounds:
"1. That the said county judge had no jurisdiction to make the appraisal and award made in the above entitled proceedings.
"2. That the defendant, William J. Cronin, has been deprived of his constitutional rights by failing to have his leasehold interest in and to said premises appraised and failing to have his day in court to determine the value of the said leasehold interest.
"3. That the county judge was without jurisdiction to proceed with the appraisal and award in this proceeding without first having the question of necessity of the taking determined by a jury, as provided by the Wisconsin constitution and ch. 32 of the Wisconsin statutes."
The circuit court determined that Cronin took his appeal for the sole purpose of having his individual rights and damages determined and not for the purpose of testing the reasonableness of the entire award, and on September 12, 1958, entered an order dismissing Cronin's appeal. Cronin appealed from said order.
It is apparent from a reading of the record, from the petition and appeal filed, and from the briefs in this court, that Cronin's main objective throughout this proceeding has been to have a jury determination of the necessity of acquiring the lands in question. It has been his contention throughout that the lands are being acquired by the city of Janesville and that his constitutional rights have been violated because there has been no such jury determination.
His contention would be correct if the proceeding were by the city of Janesville. However, the determination of necessity was made by the State Highway Commission pursuant to statutory authority, and the lands to be acquired are to be in the name of the state. The land acquisition board of the city of Janesville is merely acting for the State Highway Commission pursuant to statutory authority and by its direction.
It is apparent that Cronin's second objective is to secure a separate determination of his rights and a separate award for his damages. There are no Wisconsin cases in point under the provisions of sec. 83.07, Stats. However, under other sections of the statutes where there are several interests in lands being acquired for public use, this court has determined that the proper method of fixing the damages to each estate or interest is to determine the total damages in a single award. The apportionment of the award is not a matter for the appraiser or appraisers but it must be determined in some proper proceeding instituted by the parties interested in the award. Fuller v. Town Board, 193 Wis. 549, 552, 214 N.W. 324; Fiorini v. Kenosha, 208 Wis. 496, 500, 243 N.W. 761. Annotations in 69 A.L.R. 1263, and 166 A.L.R. 1211, indicate that is the majority rule throughout the country.
Sec. 83.07(4), Stats., provides that following the hearing the county judge shall make and file his written award in his office. The award is for the benefit of the persons who are named as recipients as their interests may appear. If the recipients cannot agree upon a division of the award there is a provision that the award be apportioned among the recipients by court order after notice to all named recipients. Such a division has not yet been made and no rights of Cronin have yet been determined.
Thus neither of Cronin's objectives can be reached by his appeal to the circuit court from the award by the county judge. If the statute authorized an appeal by Cronin the only result would be a redetermination of the total damages by proceedings in the circuit court.
The right to appeal in any proceeding is governed by statute. As authority for his right to appeal Cronin calls attention to sec. 83.07(5), Stats., which provides that the landowner may take an appeal to the circuit court. He cites cases from other jurisdictions in which it is held that a tenant for years under a lease is an owner under condemnation statutes. Cases from other states are of no help, as their statutes are different. We must deal here with a construction of the provisions of sec. 83.07 of our own statutes.
Our attention is not called to any definition of the word "landowner" in Wisconsin. In United States Nat. Bank v. Lake Superior T. T. R. Co. 170 Wis. 539, 541, 174 N.W. 923, the following appears:
"The word `own' has not always the same meaning. It is often used to characterize an interest less than absolute ownership. . . . Where there is doubt as to the sense in which the word is used the object sought by the statute is the most-important consideration."
Applying that rule to the statute in question it is apparent that it contemplates only an appeal by the landowner from the single award of damages. The rights of the defendants have yet to be determined. Upon the apportionment of the award among the defendants the amount thereof apportioned to the landowners may be substantially reduced. The landowners, therefore, are the ones most interested in the entire award and the statute therefore limits the right of appeal to them.
By the Court. — Order affirmed.