Carazalla v. State

• Decision Date: 28 June 1955
• Citation: 269 Wis. 593,71 N.W.2d 276
• Parties: Charles CARAZALLA et al., Respondents, v. STATE of Wisconsin and Marathon County Highway Commission, Appellants.
• Court: Wisconsin Supreme Court

Page 276

71 N.W.2d 276

269 Wis. 593

Charles CARAZALLA et al., Respondents, v. STATE of Wisconsin and Marathon County Highway Commission, Appellants.

Supreme Court of Wisconsin.

June 28, 1955.

Vernon W. Thomson, Atty. Gen., Richard E. Barrett, Asst. Atty. Gen., Robert C. Altman, Dist. Atty., Wausau, for appellants.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for respondents.

Stephens, Bieberstein, Cooper & Bruemmer, Madison, amicus curiae.

CURRIE, Justice.

The briefs submitted by the attorney general and by American Automobile Association, amicus curiae, in support of the defendants' motion for rehearing stress the argument that any loss of commercial value to the plaintiffs' remaining lands is due to the exercise of the state's police power and not to a taking by eminent domain. This is because the designation of relocated United States Highway 51 as a 'controlled-access' highway is grounded upon an exercise of the police power.

The general rule is that damage resulting to property through the exercise of the police power is not compensable. ¹ We consider the following statement appearing in 11 McQuillin, Municipal Corporations (3rd ed.) p. 319, sec. 32.27, to be particularly pertinent to the facts of the instant case:

'The question of what constitutes a taking is often interwoven with the question of whether a particular act is an exercise of the police power or of the power of eminent domain. If the act is a proper exercise of the police power, the constitutional provision that private property shall not be taken for public use, unless compensation is made, is not applicable.'

Limited-access highways and their effect upon the rights of abutting property owners to compensation are the subject of three excellent law review articles ² in which are cited the court decisions bearing on the question. The authors of all three articles agree that the limiting of access to a public highway through governmental action results from the exercise of the police power, and that in the case of a newly laid out or relocated highway, where no prior right of access existed on the part of abutting land owners, such abutting land owners are not entitled to compensation. On the other hand, the authorities cited in these articles hold that where an existing highway is converted into a limited-access highway with a complete blocking of all access from the land of the abutting owner, there results the taking of the pre-existing easement of access for which compensation must be made through eminent domain. However, if the abutting land owner's access to the highway is merely made more circuitous, no compensation should be paid according to the authors of these articles, and the majority opinion in People v. Ricciardi, 1943, 23 Cal.2d 390, 144 P.2d 799, to the contrary is severely criticized. In the instant case the plaintiff land owners still have their right of access to old United States Highway 51 which has not been closed off.

We consider the case of State, By and Through State Highway Commission v. Burk, 1954, 200 Or. 211, 265 P.2d 783, to be particularly in point on the issue now before us, as that case, like the instant one, involved a partial taking of land for the relocation of a highway, and the relocated highway was made a non-access highway. The Oregon court held that no damages were recoverable in the eminent domain proceedings for any deprivation of easement of access because the land owners never possessed such an easement as to the newly located highway. It was pointed out in the opinion that the making of the relocated highway a non-access highway was the...