City of Madison v. Tiedeman

• Decision Date: 04 June 1957
• Citation: 1 Wis.2d 136,83 N.W.2d 694
• Parties: CITY OF MADISON, a Municipal Corporation, Respondent, v. Frank TIEDEMAN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 694

83 N.W.2d 694

1 Wis.2d 136

CITY OF MADISON, a Municipal Corporation, Respondent, v. Frank TIEDEMAN et al., Appellants.

Supreme Court of Wisconsin.

June 4, 1957.

McAndrews & Melli, Madison, for appellants.

Harold E. Hanson, City Atty., Alton S. Heassler, Asst. City Atty., Madison, for respondent.

STEINLE, Justice.

The questions presented pertain not only to the grounds of the demurrer, but also to a consideration as to whether the demurrer was a proper pleading to the condemnation petition, and if so, as to whether the order overruling the demurrer was appealable. Since we are obliged to determine that a demurrer to a condemnation petition is not a proper pleading, it is beyond our province to decide the other considerations that have been raised.

The several steps to be employed in a condemnation proceeding are prescribed in ch. 32, Stats. Sec. 32.04, Stats., provides for the presentation of a petition by a person desiring to acquire property by condemnation to either the county or circuit judge of the county where the property is situated. It also specifies the necessary content of such petition; sec. 32.05, Stats., relates to the notice of hearing; sec. 32.07, Stats., specifies the procedures to be employed in determining the necessity of the taking; sec. 32.08, Stats., relates to the appointment of commissioners; sec. 32.09, Stats., treats with the notice of appraisal; sec. 32.10, Stats., specifies the procedure relating to the hearing on appraisal; and sec. 32.11, Stats., provides that any party to a condemnation proceeding may appeal to the circuit court from an award of the commissioners. This section of the statutes also particularizes the requirements for such appeal.

Sec. 32.07, Stats., specifically provides as follows:

'Necessity, determination of. The necessity of the taking shall be determined as follows:

'(1) If the application be by a municipal corporation, the filing of the petition under section 32.04 shall be deemed the commencement of an action for the determination of the necessity of the taking. Within 20 days after the service of notice, as provided in section 32.05, any person owning or interested in any property proposed to be condemned, may serve and file an answer. After the expiration of the time for answering, the action may be brought on for hearing on a 3 days' notice to all parties who have answered and shall have precedence over all other matters not on trial. The court shall thereupon impanel a jury and the question of the necessity of the taking shall thereupon be tried as a question of fact. Juries shall be obtained in the manner provided for circuit courts, except that in county courts having extra civil jurisdiction the method prescribed by the law creating the court shall be followed. It no answer to the petition is interposed the trial by jury shall proceed ex parte. The costs in such proceedings shall be paid by the municipality. The court may, in its discretion, submit to a single jury the determination of such necessity as to one or more than one or all of the parcels of land sought to be taken for the same purpose, or for one or more streets or alleys. If the jury find that the taking of such lands is not necessary the owner thereof shall recover from the municipality his necessary disbursements and taxable costs not to exceed $25.

'(2) If the application be by a town or county, or by a board, commission, public officer or housing authority created under ss. 66.40 to 66.404; or for the right of way for a railroad or a street or interurban railway up to 100 feet in width, or a telegraph, telephone or electric line; or for the right of way for a gas-pipe line, main or service; or for easements for the construction of any elevated structure or subway for railroad, street, or interurban railway purposes, the petitioner shall determine the necessity.

'(3) In all other cases, the judge shall determine the necessity.

'(4) The determination of the public service commission of the necessity of taking any undeveloped water power site made pursuant to the provisions of section 32.03(3) shall be conclusive.'

Sec. 32.11, Stats., provides:

'Appeal. Any party to a condemnation proceeding, and any persons against whose lands assessments for benefits or damages shall have been made, may appeal from the award of the commissioners to the circuit court of the county by filing a notice of appeal in the office of the clerk of such court. Such notice must be filed within thirty days from the filing of the report of the commissioners. The clerk shall thereupon enter the appeal as an action pending in said court with the owner or owners of the property for which the award was made and who are parties to the appeal as plaintiffs and the party by whom the property is taken as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein. It shall be tried by jury unless waived. Costs shall be allowed to the successful party on the appeal. If in favor of the plaintiff they shall be added to the verdict. If in favor of the defendant, they shall be deducted therefrom.'

The appellants maintain that a demurrer may be interposed to a petition for condemnation presented to the judge by a municipality, and that the ruling upon the demurrer is appealable to this court. The respondent City contends that notwithstanding the provision in sec. 32.07, Stats., directing a trial by jury on the issue of the necessity of the taking when a municipality applies for condemnation, and despite the legislature's declaration in said statute that the filing of the petition shall be deemed the commencement of an action for the determination of such issue if the application is by a municipality, nevertheless the determination of such issue in said manner is but a step in the entire condemnation proceeding, with no finality of determination from which an appeal to this court may be taken. Further, it is contended that until there is an appeal from the award of the commissioners as provided in sec. 32.11, Stats., and until the clerk of the circuit court shall have entered the appeal as an action pending in said court, with the owner of the land so appealing shown as a party plaintiff, and the party by whom the property is taken shown as party defendant, there is no action pending to which the general rules of pleadings and practice shall apply. It is the position of the respondent that previous to an appeal from an award of the commissioners, only the pleadings and procedure specifically authorized by statute are permissible. Respondent also submits that if an appeal from an award of the commissioners is made, there is then available to an aggrieved owner the right to challenge in law or fact all phases of the condemnation proceeding, excepting the fact determination relating to the necessity for the taking.

In support of its position that a demurrer to a petition presented to the judge by a municipality is proper, the appellants rely on Freber v. Beaver Dam, 1931, 205 Wis. 299, 237 N.W. 119 and New Lisbon v. Harebo, 1937, 224 Wis. 66, 271 N.W. 659. True, in each of those cases a demurrer was interposed to the petition presented by the municipality, and appeal was taken to this court from an order overruling the demurrer. However, in neither of said cases was there challenge of the propriety of the interposition of the demurrer to the petition as presented by the municipality, nor was question raised as to the appealability of the order of the court overruling the demurrer.

In cases involving orders overruling petitions for condemnation presented by others than municipalities, it has frequently been held that such petition is not demurrable, and that only after an appeal has been taken from the commissioners' award does the proceeding take on the nature of an action to which the general practice rules apply. In Tobin v. Willow River Power Company, 1932, 208 Wis. 262, 263, 242 N.W. 480, it was said:

'That the petition was not demurrable has been held in Manns v. Marinette & M. P. Co., 205 Wis. [349, 235 N.W. 426], 238 N.W. 624. See, also, Price v. Marinette & M. P. Co., 197 Wis. 25, 221 N.W. 381; Baerwolf v. Wisconsin River P. Co., 198 Wis. 112, 223 N.W. 571.

'While the proceeding undr chapter 32 [Stats.] is before the judge, it is not a proceeding in court. The taking of private property for public purpose is a matter that rests within the power and discretion of the Legislature, and it may be taken upon such terms as the Legislature prescribes, subject to the right of trial by jury on the question of necessity, where property is taken by a municipal corporation. Where a person alleges he is deprived of his property without just compensation, he is entitled to a judicial determination, and that right is given him by way of appeal under section 32.11. When an appeal is taken to the circuit court, all issues are subject to a trial de novo, as indicated in Skalicky v. Friendship E. L. & P. Co. 193 Wis. 395, 214 N.W. 388.'

In Olen v. Maupaca County, 1941, 238 Wis. 442, at page 446, 300 N.W. 178, at page 180, it was said:

'The authority or power conferred by secs. 32.04 and 32.07, Stats., upon a county judge is not conferred upon him as part of his ordinary judicial functions; and no jurisdiction or power is thereby conferred or vested in the county court.'

238 Wis. at pages 446, 447, 300 N.W. at page 181.

'* * * it is only after such an appeal has been taken from the commissioners' award to the circuit court, as authorized by sec. 32.11, Stats., that there can be held to be pending any action or proceeding in any court.'

In the recent cases of Klump v. Cybulski, 1957, 274 Wis. 604, 81 N.W.2d 42, and Barrows v. Kenosha County, 1957, 275 Wis. 124, 81 N.W.2d 519, we held that until the commissioners have made an award, a proceeding under ch. 32, Stats., is not of a judicial nature, the judge acting merely in an...