Bear v. Kenosha County

• Decision Date: 20 December 1963
• Citation: 22 Wis.2d 92,125 N.W.2d 375
• Parties: Manford C. BEAR and Dee Bear, his wife, and Robert B. Bear, Plaintiffs-Respondents. v. KENOSHA COUNTY, a municipal corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 375

125 N.W.2d 375

22 Wis.2d 92

Manford C. BEAR and Dee Bear, his wife, and Robert B. Bear Plaintiffs-Respondents. v. KENOSHA COUNTY, a municipal corporation, Defendant-Appellant.

Supreme Court of Wisconsin.

Dec. 20, 1963.

Mittelstaed, Heide, Sheldon & Hartley, Kenosha, for appellant.

Phillips & Richards, Kenosha, for respondents.

HALLOWS, Justice.

The defendant contends the judgment is not supported by the evidence mainly because all three of the plaintiffs' experts erroneously assumed that before the taking the plaintiffs had free and uncontrolled access to Highway 50 and, therefore, their opinions of the value should be disregarded. If no right of access existed, the opinion of value based upon such assumption might be disregarded under the rule of Pressed Steel Tank Co. v. Industrial Comm. (1949), 255 Wis. 333, 38 N.W.2d 354, and Branch v. Oconto Co. (1961), 13 Wis.2d 595, 109 N.W.2d 105. However, the record does not disclose that to be the fact. The point at issue is the value of the property before taking and particularly the frontage along State Highway 50. The three experts for the plaintiffs testified the highest and best use for this frontage was for residential use with a value of $1,500 an acre excepting for the corner at the intersection which was best suited for commercial purposes with a value of from $7,500 to $10,000. These witnesses also testified that as a result of the taking of the access rights, the highest use of the land for subdivision purposes was destroyed and the value of the tract was from $400 to $425 per acre. The net-compensable loss testified to by the three experts for the plaintiffs varied from $22,500 to $26,000. The jury found $12,000. Thus there is credible evidence to sustain the judgment if the opinions of these witnesses can be considered.

It is true the plaintiffs' experts testified on the basis the property had access for residential purposes to Highway 50. But the defendant contends Highway 50 being a state trunk highway the access to and from the adjoining land was controlled prior to the taking and, therefore, was of no value. At the outset the defendant is confronted with the inconsistency in its argument that its award included access rights and it must be presumed the defendant recognized the plaintiffs had rights of access to some degree. The extent of the restrictions and limitations and the effect on value were jury questions.

Impositions of access restrictions on land abutting a state trunk highway are dealt with in ch. 236, Stats., sec. 84.25, Stats., and sec. 86.07, Stats. Sec. XI of the Kenosha county zoning ordinance which was not brought to the attention of the trial court at the time of the trial will be discussed later.

It is admitted that the state of Wisconsin has not restricted access to State Trunk Highway 50 pursuant to any authority in sec. 84.25, Stats. This section deals with controlled-access highways and provides a procedure by which the state may deprive abutting owners on controlled-access highways from ingress and egress. Proceedings under this section have been construed to be an exercise of the police power. Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95.

The provisions of sec. 86.07(2), Stats., prohibits any person from making any alteration in a state highway or disturbing any highway without a permit from the highway authority maintaining the highway. This section is considered to require a permit to put in a driveway for access from private property abutting the highway. The location, design and construction of driveways are controlled by the state highway commission in a case of state trunk highways. Sec. Hy 31.03(2) of the Wisconsin Administrative Code (promulgated by the Wisconsin Highway Commission) provides the number of driveways permitted serving a single property frontage along a state highway shall be the minimum deemed necessary by the engineer for reasonable service to the property without undue impairment of convenience and utility of the highway. This section does not deny the right to access but regulates access in the interests of public safety and convenience. The trial court properly instructed the jury on this point and it was for the jury to consider in determining the weight to be given to the testimony of the value of the property so affected.

The effect of ch. 236, Stats., on value depends upon the size of the contemplated lots. Sec. 236.02(8) defines what is a subdivision which requires approval and recording of a plat. If the act of division creates five or more parcels or building sites of one and one-half acres each or less in area or if five or more such parcels are created by successive divisions within a period of five years then a subdivision is created and the approval of the preliminary or final plat is conditioned in part upon compliance with the rules of the state highway commission relating to the safety of entrance upon and departure from the abutting state trunk highway. Sec. 236.13(1)(2). Such rules provide no direct access without consent of the highway commission which also must approve street intersections. Sec. Hy 33.05, W.A.C. There is some difference in the evidence over the size of the proposed lots. The defendant argues the testimony of value of one of the plaintiffs' experts was based on lots less than one and one-half acres and, therefore, this control would apply. Testimony of the witnesses of the value was on an acreage basis and the question of the best and most advantageous use of the land including the size of the lots was a question for the jury which could in determining the value of the land properly consider or disregard this limitation. The jury was correctly instructed on the applicability or nonapplicability of ch. 236 and ch. Hy 33, W.A.C.

The opinions of the experts including their theory and basis of value were for the jury to evaluate as against the defendant's contention the right of access was so impaired, restricted and controlled as to be valueless. We do not consider an opinion of the value of real estate should necessarily be disregarded because of different evaluations of the factors upon which such opinion is predicated. In this case, access rights did exist, but it is a question of what degree.

The defendant strenuously argues sec. XI of the Kenosha county zoning ordinance, adopted in 1959, and approved March 30, 1961, by the town of Pleasant Prairie in which the land is located, materially affected the value of the land for the proposed use. This zoning ordinance was not called to the attention of the court or in fact known to the defendant's counsel at the time of trial. It is seriously argued the zoning ordinance would materially affect the value of the property and affect access to the highway and especially would affect the value of the proposed commercial parcel by creating a visual clearance triangle at the intersection. It may well be as the defendant argues this zoning ordinance would materially affect the value of the property. However, we cannot consider its claimed effect on the question of...