Crown Zellerbach Corp. v. Department of City Development of City of Milwaukee

• Decision Date: 02 June 1970
• Docket Number: No. 214,214
• Citation: 47 Wis.2d 142,177 N.W.2d 94
• Parties: CROWN ZELLERBACH CORP., also sometimes referred to as the Gaylord Container Corporation, Respondent, v. DEPARTMENT OF CITY DEVELOPMENT OF the CITY OF MILWAUKEE, as agent for the State of Wisconsin, et al., Appellant.
• Court: Wisconsin Supreme Court

Page 94

177 N.W.2d 94

47 Wis.2d 142

CROWN ZELLERBACH CORP., also sometimes referred to as the

Gaylord Container Corporation, Respondent, v. DEPARTMENT OF CITY DEVELOPMENT OF the CITY OF MILWAUKEE, as

agent for the State of Wisconsin, et al., Appellant.

No. 214.

Supreme Court of Wisconsin.

June 2, 1970.

The plaintiff-respondent, Crown Zellerbach Corporation, appealed to the circuit court, Milwaukee county, an award of damages made pursuant to sec. 32.05(11), Stats. The award was made on January 10, 1963, pursuant to sec 84.09(3), for damages resulting from the taking of plaintiff's land by defendant-appellant, Department of City Development of the City of Milwaukee as agent for the State of Wisconsin and the State Highway Commission of Wisconsin. The taking was necessitated by the widening and extension of North Teutonia avenue and West Silver Spring Drive. The jury was waived and the case tried by the court. The court made the following conclusions of law: (1) The condemnation involved a partial taking and, therefore, sec. 32.09(6) controlled; (2) the restriction of plaintiff's existing right of access to the highway from abutting land did not arise under any duly authorized exercise of police power; (3) the cost of the relocation of plaintiff's loading dock was a proper element to consider in establishing damages under sec. 32.09(6); (4) the value of plaintiff's property before the taking was $740,000, and the value after the taking was $700,000, making the damages due plaintiff $40,000; and (5) the plaintiff was entitled to judgment of $40,000, less $15,600 which had been already paid together with interest, costs and disbursements pursuant to sec. 32.05(11)(b). Judgment was entered accordingly on May 7, 1969. On May 14, 1969, the trial court issued an order to show cause why costs should not be disallowed in their entirety. On July 3, 1969, appellant's motion was denied and costs, as determined and allowed by the clerk of the circuit court, were in all respects approved and affirmed. The appeal is taken from the judgment entered May 7, 1969.

John J. Fleming, City Atty., Harvey G. Odenbrett and Wallace E. Zdun, Asst. City Attys., Milwaukee, for appellant.

Whyte, Hirschboeck, Minahan, Harding & Harlan, S.C., Milwaukee, Victor M. Harding, and Anthony W. Asmuth III, Milwaukee, of counsel, for respondent.

CONNOR T. HANSEN, Justice.

The trial court made the following findings which provide the factual basis for this appeal:

'(3) The plaintiff owned lands on which it operated a plant for the manufacture of corrugated boxes and paperboard shipping containers, at the southeast corner of West Silver Spring Drive and North Teutonia Avenue in the City of Milwaukee. West Silver Spring Drive extends in an easterly and westerly direction, and North Teutonia Avenue extends north and south.

'* * *

'(5) On said land plaintiff's manufacturing plant is a one story building, 227 feet 492 feet, with an annexed single story structure designed for an office, 25 feet 80 feet, the entire plant comprising a total area of 113,684 feet.

'(6) The total land area of the plaintiff which was taken in connection with this public improvement, is 7,080 square feet. This consisted of two strips, one of which was 406.79 feet in length along North Teutonia Avenue, and the other strip was 410.79 feet along West Silver Spring Drive.

'* * *

'(12) Prior to the taking, West Silver Spring Drive, along the plaintiff's frontage, consisted of two, two-lane, paved roadways separated by a median strip approximately 10 feet wide, with the roadway on the south side of the median strip for east bound traffic, and the roadway on the north side of the median strip for west bound traffic. There was a gravel shoulder 18 feet wide between the north boundary of the plaintiff's property and the south edge of the pavement of the east bound roadway, which paved east bound roadway was approximately 20 feet wide. This gravel shoulder was within the right of way of West Silver Spring Drive. There was no curb or gutter along plaintiff's north property line. There were four openings in the median strip, one about 125 feet long directly in front of and to the east of the concrete apron in front of plaintiff's loading dock, another to the west and two to the east of this opening, each approximately 40 feet in length. These openings provided access to the plaintiff's loading dock and property for vehicles approaching in the west bound roadway of West Silver Spring Drive, as well as access to the west bound roadway for vehicles leaving plaintiff's loading dock and property. There was a rising grade from east to west (to Teutonia Avenue) on West Silver Spring Drive along plaintiff's property.

'(13) After the taking, West Silver Spring Drive was converted to a fourlane roadway, depressed to pass under North Teutonia Avenue with one-way service streets above the grade of the depressed roadway on either side thereof, for traffic entering and leaving West Silver Spring Drive at this intersection.

'* * *

'(16) Prior to the taking, plaintiff's loading dock was located at the northeast corner of the plant building, and fronted along West Silver Spring Drive. It consisted of eight stalls, or four double bays within the building, each having a depth of about 50 feet from loading platform to door, which was sufficient to accommodate a tractor and trailer within the building with the doors closed. The overall width of the loading dock was 88 feet.

'(17) A concrete apron, 88 feet in width (the width of the dock from east to west), extended from the front of the loading dock (the front doors) to the plaintiff's north property line, or a distance of 53 feet 9 inches on the east and 60 feet on the west. The concrete apron sloped southerly toward the loading dock, the greatest slope being toward the westermost bay, and for this reason this bay was not used for loading.

'(18) In connection with the use of plaintiff's former loading dock, practically all of the vehicles serving the plaintiff's plant were 50 foot tractor-trailer units. The loading operation consisted in backing the units into the bay or stall.

'* * * '(28) The plaintiff's former loading dock heretofore described, fronting on the north side of the building, was not obsolete immediately before the taking, but was adequate and efficient for its purposes.

'* * *

'(30) After the taking, the above described changes in West Silver Spring Drive rendered the use of the plaintiff's former loading dock impractical by reason of the following circumstances:

'(a) The docking operation could be made only from the east bound roadway, and by backing against east bound traffic on said roadway.

'(b) The east bound roadway serves as an access ramp to the east bound lane or roadway of West Silver Spring Drive, and thus serves all vehicular traffic intending to enter the east bound lane of West Silver Spring Drive proceeding from the south and north of Teutonia Avenue and from the west on the service road intersecting North Teutonia Avenue.

'(c) There is heavy vehicular traffic on said east bound service roadway, particularly during the so-called rush hours.

'(d) Vehicular traffic on the said east bound service roadway would interfere with the backing movement on said roadway (or conversely, the backing movement would interfere with the flow of vehicular traffic on the said east bound service roadway), and the backing movement would have to be made on the blind side of the truck, which prevents the driver from seeing the area he is backing into.

'(e) Since a tractor-trailer, in docking, must back straight into the dock stalls, the docking maneuver could not be made without moving onto the pavement of the east bound service roadway.

'(f) Such docking operations could not be performed without hazard to vehicular traffic (including the trucks engaged in the docking maneuver) on the east bound service roadway.

'(31) As a result of the above described changes at the intersection of Teutonia and Silver Spring, docking at the plaintiff's former loading dock would now be impractical. A curb now extends along the south edge of the service roadway, with cement sidewalk south of the curb and there are no driveway openings. Even with driveway openings the change in West Silver Spring Drive, after the taking, rendered the use of the plaintiff's former loading dock impractical.'

As a result in the change in West Silver Spring Drive, plaintiff relocated its loading dock before the actual reconstruction of West Silver Spring Drive began and before the date of the actual taking. As a consequence of relocating the loading dock, the employee parking lot was moved and a new employee entrance and main office entrance was constructed.

Appellant asserts that the loading dock was adequate and sufficient for its purposes after the taking in 1963 but fails to make any direct challenge or claim that certain specific findings of the trial court are contrary to the great weight and clear preponderance of the evidence.

"Since the trial court tried the case without a jury, its findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence and it is not necessary the evidence in support of the findings constitutes the great weight or clear preponderance of the evidence. Nor is it sufficient that there is evidence to support a contrary finding. To command a reversal, such evidence although sufficient to support a verdict must constitute the great weight and the clear preponderance of the evidence. Druml Co. v. Capitol Machinery Sales &amp Service Co. (1965), 29 Wis.2d 95, 138 N.W.2d 144; Columbia Stamping & Mfg. Co. v. Reich (1965), 28 Wis.2d 297, 137 N.W.2d 45; Estate of Perssion (1963) 20 Wis.2d 537, 123 N.W.2d 465, 13 A.L.R.3d 373; State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701." Estfred Corp. v. Freeman (1967), 36 Wis.2d 19, 25, 26, 153 N.W.2d 13, 16.

The trial court was correct...