Boeck v. State Highway Commission

• Decision Date: 31 October 1967
• Parties: Ernst BOECK et al., Appellants, v. The STATE HIGHWAY COMMISSION of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 610

153 N.W.2d 610

36 Wis.2d 440

Ernst BOECK et al., Appellants, v. The STATE HIGHWAY COMMISSION of Wisconsin, Respondent.

Supreme Court of Wisconsin.

Oct. 31, 1967.

Donald L. Hollman, Duane H. Polivka, Friendship, for appellants.

Bronson C. La Follette, Atty. Gen., Albert Harriman, Asst. Atty. Gen., Madison, for respondent.

BEILFUSS, Justices.

The issue is the sufficiency of the service of the jurisdictional offer.

The procedure to be used by the state highway commission to obtain highway scenic easements is set forth in sec. 32.05, Stats. Pursuant to this section the highway commission attempted to obtain the easement by negotiation. The offer made was rejected by the plaintiffs. The highway commission was then required to give notice of a jurisdictional offer.

Sec. 32.05(4), Stats., provides how notice of a jurisdictional offer must be given. The pertinent provisions of the statute are as follows:

'How notice of jurisdictional offer is given. The giving of such notice is a jurisdictional requisite to a taking by condemnation. Such notice may be given by personal service in the manner of service of a circuit court summons, or it may be transmitted by certified mail. If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service. * * *' If the owner desires to contest the right of the condemnor to take any part of his land he must commence an action for that purpose within 40 days of the completion of the service of the jurisdictional offer upon him. ¹ In this instance the action to challenge the right of the highway commission to condemn the land was commenced 77 days after the notice of jurisdictional offer was mailed to the plaintiffs.

The plaintiffs contend that they did not in fact receive the jurisdictional offer and that mailing the offer is a substitute method of service only to be used in the event personal service cannot be effected.

Discussing the last contention first, the statute does not require that personal service be attempted first or resorted to in the event that notice by mail is returned. The statute simply provides that notice can be given in either manner. ² The highway commission could at its election determine to serve the jurisdictional offer by mail.

Turning now to the plaintiff's contention that the service by mail was ineffective because they did not receive the notice, it can be said as a general rule in the absence of the statutory provision, that service of notice would not become effective until the party received it. In Hotel Hay Corp. v. Milner Hotels, Inc., (1949), 255 Wis. 482, 486, 39 N.W.2d 363, 366 this court held:

"* * * As stated in 46 Corp.Jur. (Notice, p.) 559, (sec. 69,--)

"In the absence of custom, statute, estoppel, or express contractual stipulation, when a notice, affecting a right, is sought to be served by mail, the service is not effected, until the notice comes into the hands of the one to be served, and he acquires knowledge of the contents.' See also In re Leterman, Becher & Co., Inc., (2d Cir. 1919), 260 F. 543, 548.' (Emphasis supplied.)

Here, however, there is a clear statutory provision that governs:

'* * * If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service. * * *' Sec. 32.05(4), Stats., supra.

Under such statutory provisions for service it is usually held that:

'* * * service may be effective when the notice is properly mailed, regardless of its receipt by the addressee; in such case the risk of miscarriage or failure to deliver is on the addressee.' 66 C.J.S. Notice § 18, p. 664.

The cases on the subject were summarized by the Ohio Court of Appeals in McCoy v. Bureau of Unemployment Compensation (1947), 81 Ohio App. 158, 77 N.E.2d 76, 78, 36 Ohio Op. 463, 464:

'In 42 Am.Jur. 48, it is said:

"Service of Process by Mail, when authorized, is deemed complete when the writ is deposited in the post office, properly addressed and with the proper amount of postage. And it is sufficient if it is deposited in the mail on the last day allowed for service, although it is not received by the other party until after that day.'

'See, Carlson v. Stuart, 18 Ann.Cas. 285 (22 S.D., 560, 119 N.W. 41), in a foot-note to which (, as reported in 18 Ann.Cas., 285, at page 286,) we find this statement:

"Service by mail, properly made in compliance with statute, is complete from the time the notice or other paper to be served is deposited in the post office with the proper amount of postage, and the risk of failure of the mail is upon the party to whom the paper is addressed.'

'The syllabus of Hurley v. Olcott, 198 N.Y. 132, 91 N.E. 270, (as reported in) 28 L.R.A.,N.S., 238 is:

"Failure of the employer to receive the notice is immaterial where a statute providing for service of notice of injury for which the master is to be held liable states that it may be served by post, by letter addressed to the person on whom it is to be served.'

'And, at page 134 of 198 N.Y., at page 270 of 91 N.E., 28 L.R.A.,N.S., 239, the Court says:

"In many cases the statute provides that notice may be served by mail. Such is the provision as to service of papers on the attorneys in an action, and it has been uniformly held that the service was effective when the papers were properly mailed, regardless of thier receipt by the adverse party. The risk of miscarriage is with the party to whom they are directed. Jacobs v. Hooker, 1 Barb. 71; Brown v. Briggs, 1 How.Prac. 152; Radcliff v. Van Benthuysen, 3 How.Prac. 67."

In the situation presented here, we find no sufficient reason to depart from this view.

Even in the absence of the statutory provision making service effective on the date of mailing, plaintiffs would be in no position to claim defective notice. The only reason they did not 'receive' the jurisdictional offer is because Mrs. Boeck refused to accept it from the postman.

This court as early as 1885 recognized that one could not ignore the orderly processes of the law by refusing to accept service when properly made:

'It is of course impossible, without the use of violence, to compel a party to receive and retain papers offered him with a view of making a service. Any act of violence to accomplish that end is not to be tolerated. And when a party refuses to accept a copy of a summons which is offered him in a civil and proper manner, after being informed what the paper is, there is no other way to make service but deposit the process in some appropriate place, in the...