Aero Auto Parts, Inc. v. State, Dept. of Transp., Division of Highways, 75-369

• Citation: 253 N.W.2d 896,78 Wis.2d 235
• Decision Date: 01 June 1977
• Docket Number: No. 75-369,75-369
• Parties: AERO AUTO PARTS, INC., a Wisconsin Corporation, Appellant, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 896

253 N.W.2d 896

78 Wis.2d 235

AERO AUTO PARTS, INC., a Wisconsin Corporation, Appellant, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Respondent.

No. 75-369.

Supreme Court of Wisconsin.

Argued May 2, 1977.

Decided June 1, 1977.

Richard Bolte, Wausau, for appellant; Kelley, Weber & Bolte, S. C., Wausaw, on brief.

Michael E. Perino, Asst. Atty. Gen., for respondent; Bronson C. La Follette, Atty. Gen., on brief.

This is an appeal from an order sustaining a demurrer to the complaint.

The plaintiff-appellant, Aero Auto Parts, Inc., leased a parcel of land owned by Florence Bembinster in Marathon County. On this property, the plaintiff operated an automobile salvage business. On December 23, 1968, a substantial portion of the parcel was taken for highway purposes by the defendant-respondent State of Wisconsin through eminent domain proceedings. Within two years of the taking, the plaintiff filed a claim for $55,669.98 with the State of Wisconsin, Department of Transportation, Division of Highways, for the cost of moving about 2,000 junked vehicles off the portion of the property taken by the state to the portion which remained after the taking. This claim has not been paid by the state.

The plaintiff commenced this action to recover upon its claim, relying upon sec. 32.19(1), Stats. (1967), which provided compensation for the realignment of personal property on the same site in a partial taking. The state demurred to the complaint, asserting that the statute did not provide such compensation for a tenant and also that the court lacked jurisdiction over the state because the legislature had not directed the manner by and the court in which the action could be brought. The circuit court concluded that sec. 32.19(1), Stats. (1967) did not include tenants and, thus, sustained the demurrer for failure to state a cause of action.

HANLEY, Justice.

The following issue is presented on appeal:

Is a tenant, under sec. 32.19(1), Stats. (1967), entitled to recover the cost of realigning personal property on the same site in a partial taking in eminent domain proceedings?

The plaintiff's claim for compensation is based upon sec. 32.19(1), Stats. (1967), which was in effect at the time of the taking in this case. Sec. 32.19 of the statutes was repealed and recreated in chapter 409, Laws of 1969. In rewriting the section, the legislature chose to utilize a statutory framework significantly different from that of the repealed section. Therefore, the statute upon which this case is brought is no longer in existence, and the interpretation of it will be of limited precedential value.

Sec. 32.19(1), Stats. (1967) provided:

"32.19 Additional items payable. The following items shall be compensable in eminent domain proceedings where shown to exist:

"(1) Realignment of personal property. The cost of realigning personal property on the same site in partial takings or where realignment is required by reason of elimination or restriction of existing used rights of access."

The plaintiff contends that sec. 32.19(1) is clear and unambiguous, providing compensation for the realignment of personal property required by a partial taking. Therefore, it argues, the trial court improperly resorted to judicial construction of the statute to determine that the legislature did not intend to authorize compensation to tenants for realignment of personal property required by a partial taking.

The respondent state, on the other hand, contends that judicial construction is proper in this case, because the statutory section does not designate to whom this cost is compensable and is therefore ambiguous.

In National Amusement Co. v. Department of Revenue, 41 Wis.2d 261, 267, 163 N.W.2d 625, 628 (1969), this court stated:

"This court has consistently used the same test for ambiguity:

" 'A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses.' State ex rel. Neelen v. Lucas (1964), 24 Wis.2d 262, 267, 128 N.W.2d 425, citing State ex rel. West Allis v. Dieringer (1957), 275 Wis. 208, 218, 81 N.W.2d 533.

"Whenever a case such as this one is before the court, however, it is obvious that people disagree as to the meaning to be given to a statute. This alone cannot be controlling. The court should look to the language of the statute itself to determine if 'well-informed persons' should have become confused."

A statutory subsection may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter. Student Ass'n of University of Wisconsin-Milwaukee v. Baum, 74 Wis.2d 283, 291, 246 N.W.2d 622 (1976); Omernik v. State, 64 Wis.2d 6, 12, 218 N.W.2d 734 (1974); 2A Sutherland, Statutory Construction § 46.05 (4th ed. 1973).

In light of prior law of eminent domain respecting costs of moving personal property, reference in general to chapter 32, Stats. (1967), and especially to the balance of sec. 32.19, reveals the ambiguity, perhaps latent, in subsec. 32.19(1).

Prior to 1959, there was no statute which enumerated particular items of damage for which compensation could be awarded in eminent domain proceedings. It was the prevailing rule in Wisconsin that expenses of removing personal property could not be considered in estimating compensation for the taking of land by condemnation. Fiorini v. City of Kenosha, 208 Wis. 496, 498-99, 243 N.W. 761 (1932). The general rule among the states then and today is that, in the absence of statutory authorization, neither the owner in fee nor a tenant is entitled to recover the cost of removing personal property from land taken by condemnation. 4A Nichols, Eminent Domain § 14.2471(2) (rev. 3d ed. 1976); 27 Am.Jur.2d Eminent Domain § 293, 354 (1966).

Sec. 32.19(1) (1967) simply states that the costs if realigning personal property is compensable. This broad authorization, on its face, would seem to permit compensation regardless of whose property was realigned. However, chapter 32 (1967), providing the statutory scheme by which the constitutional mandate for just compensation was implemented, was completely orientated toward the rights of an owner in fee. Note, 1966 Wis.L.Rev. 1215. In some of the statutory sections it appears the legislature might have desired to limit compensation for items to the owner. For example, sec. 32.09(7), Stats. (1967), which dealt with compensation in partial takings, stated: "In addition to the amount of compensation paid pursuant to sub. (6), the owner shall be paid for the items provided for in sec. 32.19, if shown to exist . . . ." (emphasis added). Moreover, in some of the other subsections of sec. 32.19 (1967), the legislature specified that the compensation thereunder was for a cost incurred by a particular person. Sub. (2) of sec. 32.19 (1967) was similar to sub. (1) in that it allowed compensation for the cost of moving personal property, but under this subsection it was specified to whom this court is compensable. Sub. (2) provided compensation for "(t)he cost of removal from the property taken to another site of personal property of land owners, or tenants under an unexpired written lease, the full term of which is at least 3 years."

Therefore, since the statute simply states that moving costs are compensable, but there are other factors in the law of eminent domain and other portions of the statutes which could lead to the conclusion that such costs are only compensable for the removal of the owner's property, this is a situation where any "reasonably well-informed" person should be confused as to who may receive such compensation. Both the parties' interpretations of sec. 32.19(1) (1967) are reasonable. The statute is ambiguous, and judicial construction is therefore appropriate. Student Ass'n of University of Wisconsin-Milwaukee v. Baum, supra 74 Wis.2d at 291, 246 N.W.2d 622; State ex rel. Klingler & Schilling v. Baird, 56 Wis.2d 460, 465, 202 N.W.2d 31 (1972).

Under the circumstances of the instant case, the statute is to be liberally construed. In the leading treatise on the subject it is stated:

"The rule of strict construction applies to the power of the condemnor and to the exercise of such power. It is a rule intended for the benefit of the owner who is deprived of his property against his will. It follows, therefore, that the converse of this rule is also true. Statutory provisions in favor of an owner, such as provisions regulating the remedies of such owner and the compensation to be paid to him, are to be liberally construed." 1 Nichols, Eminent Domain § 3.213(4) (rev. 3d ed. 1976); See Lenz v. Chicago & Northwestern Railway Co., 111 Wis. 198, 206, 86 N.W. 607 (1901).

In determining the legislature's intent, the court examines the statutory language in relation to its scope, history, context, subject matter, and the object intended to be accomplished. State Medical Society of Wisconsin v. Commissioner of Insurance, 70 Wis.2d 144, 155, 233 N.W.2d 470 (1975).

Sec. 32.19 (1967) was enacted in 1961, but its provisions actually originated in the 1959 enactment of sec. 32.09.

In chapter 639, Laws of 1959, the legislature repealed and recreated all of chapter 32, Stats. In sec. 32.09 of that new chapter, the rules governing determination of just compensation were set forth. Sec. 32.09(5) (1959) enumerated several items of damage for which compensation might be awarded. Subs. 32.09(5)(f), (k), (l), (m), and (n) provided for five items of compensation, which were later removed from sec. 32.09 (1959) and placed in a new sec. 32.19, which is the subject we are concerned with here, enacted by the Laws of 1961, ch. 486, sec. 18. The only substantial difference between these five items as provided for in sec. 32.09(5) (1959) and as provided for in sec. 32.19 (1967) was that under sec. 32.19(2) (1967), compensation was allowed for...