Opinion
February 9, 1962 —
March 6, 1962.
APPEALS from orders of the circuit court for Ozaukee county: MILTON L. MEISTER, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Ralph E. Houseman of Grafton, and Frank X. Didier of Port Washington.
For the respondent the cause was argued by Richard C. Bonner of Grafton, special counsel, and Richard E. Barrett, assistant attorney general, with whom on the brief were John W. Reynolds, attorney general, and James J. Koenen, district attorney of Ozaukee county.
In order to improve a state highway, certain land and appurtenant access rights were condemned by the State Highway Commission. All the affected properties were parts of a single farm but the record title stood in the three appellants, each one having a separate segment of the farm.
In purported compliance with sec. 84.09 (2), Stats., the commission made a single award of damages for the entire land and access rights and tendered a single check for the amount of the award. This check was made payable to the three owners without designation of their individual shares, either in the farm or in the check. The check has not been cashed.
Each owner began proceedings to contest the condemnation of the land and access rights pertaining to his portion of the farm. Leander Kultgen's effort to declare the condemnation void has twice been carried to decision by the supreme court in Kultgen v. Mueller (1958), 3 Wis.2d 346, 88 N.W.2d 687, and Kultgen v. State Highway Comm. (1961), 12 Wis.2d 261, 106 N.W.2d 917.
The three present appellant-landowners have joined in a single brief in which they assert that the condemnation was invalid. In that brief they inform this court that the briefs and appendices in Leander Kultgen's prior appeals make it unnecessary now to supply an appendix which, up to the date of the decision in the last (1961) Leander Kultgen Case, supra, could only repeat what is already in the court's files; and in respect to the two other appellant-landowners, John Kultgen and Leo Kultgen (and wife), their records, although never before this court, were exactly the same as Leander's. All appellants furnish appendices setting forth the record of proceedings taken subsequent to the said decision in Leander Kultgen's appeal in 12 Wis.2d 261.
As stated by the current brief of the appellants, these are appeals in three separate condemnation actions from similar orders of the circuit court for Ozaukee county made in each action on October 23, 1961, denying motions to declare null and void the taking of land and access rights and, in the alternative to strike the taking of access rights and the taking of a fee and to permit only a taking of an easement for highway purposes.
Briefly, the history of the three actions is this: The Highway Commission made a single award of damages payable jointly to three owners of separate portions of the land and access rights taken. The owners appealed the amount of the award to the county judge. The judge increased the amount of damages. The commission appealed to the circuit court from the county judge's award. Nearly two years after the county judge had made his award and the commission had taken its appeal to circuit court the owners moved for summary judgment, alleging that the condemnation award by the commission was invalid and was void because the award was in gross, combining each owner's parcel with the parcel of other owners; that the commission did not negotiate with the owners for the purchase of the individual owner's land; that no separate award was made to the individual owner; that access rights were seized illegally and without hearing; that the commission acted capriciously and discriminatorily; and due process of law and uniform protection of the laws were denied to the separate landowners. The supreme court held that these issues were not raised timely and the owners' motions for summary judgment were correctly denied by the circuit court. Kultgen v. State Highway Comm., supra.
After the record in Kultgen v. State Highway Comm., supra, had been returned to the circuit court the several landowners made identical, separate motions addressed to the circuit court and based upon the same petitions which the supreme court had just ruled to be too late to present issues other than those of damages. In the new motions they ask the court for a trial by the court to declare the purported award null and void or, in the alternative, for other relief. The reliefs now asked are the same as those which were demanded in the 1961 Kultgen Case, supra. The circuit court, following the ruling of the supreme court in that Kultgen Case, denied the motions as no such issues were available after such lapse of time. The appeals are from such orders of denial.
The respondent submits that the orders denying these motions are not appealable orders.
Sec. 83.07 (5) and sec. 32.11, Stats. 1955, provide that the proceedings in the circuit court shall proceed as an action subject to all the provisions of law relating to actions originally brought therein. Thus the appealability of the order would be governed by ch. 274, Stats. Sec. 274.33 renders appealable only final orders, or those concerning provisional remedies, injunctions, attachments, new trials, demurrers, questions of jurisdiction, stays of proceedings under sec. 262.19, stipulated matters, or summary judgments.
The motions do not fall within any of the designations of appealable orders unless, possibly, the phrasing of this motion, "to move the court for a trial by the court to declare the purported award null and void" and for other specified relief may be construed as a motion for summary judgment and, hence, appealable. This is a motion for the same relief which Kultgen, in 12 Wis.2d 261, asked of the court and for the same reasons. There he termed his motion as one for summary judgment and we so considered it. However, even if the present motion is one for summary judgment and its denial be treated as an appealable order the facts and arguments now presented are those which we considered in denying relief in Kultgen v. State Highway Comm., supra. The unchanged facts and law must again produce for appellants the same unhappy result. The conclusion must be that appellants' motions raising issues other than the measure of damages came too late for consideration by the circuit court and were properly denied.
By the Court. — Orders affirmed.