Falkner v. Northern States Power Co.
| Decision Date | 06 January 1977 |
| Docket Number | 75--611,Nos. 75--610,s. 75--610 |
| Citation | 75 Wis.2d 116,248 N.W.2d 885 |
| Court | Wisconsin Supreme Court |
| Parties | Henry F. FALKNER and Clara Falkner, his wife, Appellants, v. NORTHERN STATES POWER COMPANY, a Wisconsin Corporation, Respondent. Harold C. BAUER and Carolyn Lucille Bauer, his wife, Appellants, v. NORTHERN STATES POWER COMPANY, a Wisconsin Corporation, Respondent. |
Eugene C. Daly (argued), Milwaukee, Eugene R. Jackson, Chippewa Falls, Richard H. Porter and Foley & Lardner, Milwaukee, on the brief, for respondent.
Northern States Power Company plans to construct a large nuclear generating station in Dunn County, Wisconsin, to be called the Tyrone Energy Park. It is to consist of two independent units, each with a generating capacity of 1150 megawatts. The plant will employ cooling towers of the 'wet' type, with cooling water to be drawn from the Chippewa river, approximately 11/4 miles away. At the time of trial it was intended that the first until be operational in April, 1982, and the second in October, 1983. However, due to revised demand projections, it now appears that the first unit will be delayed until April, 1985, and the second until an indefinite later date.
The appellants are the owners of farm property which Northern States Power desires to condemn for purposes of constructing its power plant. Jurisdictional offers were served upon both the Bauers and the Falkners on January 25, 1974. Both were rejected, and the owners commenced actions to contest the right of the condemnor to condemn the property pursuant to sec. 32.06(5), Stats. The actions were tried together on July 29 and 30, 1974. It appears that there were united in this trial not only the two sec. 32.06(5) actions brought by the Bauers and Falkners, but also the condemnation proceedings that had in the interim been instituted on petition of the Northern States Power Company under sec. 32.06(7), Stats. The record in this court does not contain the petitions or other papers relating solely to the condemnation proceedings instituted by the Power Company. It does not appear that anyone objected to this mode of proceeding, which had the effect of combining for trial the property owners' actions to contest the right to condemn with the determinations by the judge of the necessity of taking under secs. 32.06(7) and 32.07, Stats.
On June 2, 1975, some ten months after the trial, the circuit court rendered its memorandum decision, ruling against the owners. Between the trial and the court's decision, Northern States Power had requested leave to withdraw its claim to about two-thirds of the Falkner land which it had originally sought. The court granted leave, stating that it would have excluded the affected lands anyway. As to the remaining lands, the court found that the Power Company had the right to condemn, that there was a reasonable necessity for the condemnation of the lands and that there was no showing of fraud, bad faith, abuse of discretion or other excess of authority by Northern States Power Company.
Findings of fact and judgments were filed on November 5, 1975.
On September 30, 1975, ch. 68, Laws of 1975, became law. This Act, in general terms, prohibits construction of bulk electric generating facilities, such as the units here involved, unless a certificate of public convenience and necessity has been obtained from the Public Service Commission, and further provides that where such a certificate is necessary, no general right of condemnation shall exist until the certificate is granted. On November 18, 1975, the owners filed motions seeking to restrain further proceedings in condemnation on the ground that the new law precluded the Power Company from condemning their property without a certificate of necessity since the condemnation commissioners had not yet acted and title had not passed to the Power Company as of the effective date of the new Act. These motions were denied by orders entered January 9, 1976. The orders provided that the hearing before the condemnation commissioners was to be held as scheduled. Appeals were taken from these orders and from the judgments of November 5, 1975.
By petition filed February 12, 1976, the owners sought this court's orders restraining
further action to condemn their lands pending determination of their appeals. By order of March 12, 1976, the requested relief was granted, and the cases advanced to the September calendar. The cases have been consolidated for purposes of appeal.
A major revision of condemnation procedures under ch. 32, Stats., was accomplished by ch. 639, Laws of 1959. It is apparent that the legislature intended to create two independent proceedings relating to condemnation, an owner's action in circuit court under sec. 32.06(5), Stats., and the condemnation proceeding before a judge under sec. 32.06(7). From sec. 32.06(5) it is clear that the two proceedings may go on simultaneously, as they in fact did in this case.
The owner's action must be commenced within forty days of service of the jurisdictional offer, while the condemnation proceeding may be brought at any time after the jurisdictional offer is rejected. 1 The owner's action is now the only manner in which issues pertaining to the condemnation may be raised, except for those of title and just compensation, and if the action is not timely commenced, the owners are barred as to all issues that might have been raised. 2
Under sec. 32.06(7), Stats., a hearing is to be had on the condemnor's petition, not sooner than twenty days from the date of its filing. At the hearing, the judge will determine the necessity of taking if that duty is assigned to the judge under secs. 32.06(1) and 32.07, as it was in the instant case. From the last two sentences of sec. 32.06(7) it appears that the end result of this hearing will be an order that either (1) determines that the petitioner is entitled to condemn the property or some portion thereof and assigns the matter to the condemnation commissioners for assessment of damages, or (2) determines that the petitioner does not have the right to condemn and refuses to assign the matter to the commissioners. This determination ends the judge's role in condemnation proceedings. If the judge rules against the condemnor, the order may be appealed directly to this court under the last sentence of sec. 32.06(7). If the judge rules the other way and assigns the matter to the commissioners, no provision is made for appeal of this decision. The commissioners are to hear the matter as provided in sec. 32.08, make an award of damages, and file it with the clerk of the circuit Court. 3
The owners claim that no statute authorizes Northern States Power to condemn their land for construction of its power plant. The power of eminent domain is an attribute of sovereignty which no private corporation may exercise except to the extent that the right has been delegated to it by the legislature. Wisconsin Water Co. v. Winans, 85 Wis. 26, 39, 54 N.W. 1003 (1893).
The Northern States Power Company bases its power of condemnation on sec. 32.02, Stats.1973:
'The following . . . corporations may acquire by condemnation any real estate and personal property appurtenant thereto or interest therein which they have power to acquire and hold or transfer to the state, for the purposes specified, in case such property cannot be acquired by gift or purchase at an agreed price:
'. . .
'(6) Any Wisconsin corporation furnishing gas, electric light or power to the public, for additions or extensions to its plant.'
It is undisputed that we are dealing with a Wisconsin corporation furnishing electric power to the public. However, the owners claim that 'plant' as used in the statute refers to a single existing facility for generating electricity and that the statute allows condemnation only to expand or extend that facility, not to construct an entirely new unit at a different location. The statute applies, they say, only to 'properties abutting a present plant.' The owners point out that condemnation statutes are to be strictly construed. iHerro v. Natural Resources Board, 53 Wis.2d 157, 171, 192 N.W.2d 107 (1971), and cases cited.
The Company argues that the 'plant' of any utility 'is its entire physical plant consisting of dams, generating stations, transmission lines and all of the complex network of property, both real and personal that becomes the entire system.'
Where non-technical words used in a statute are not specifically defined they are to be given their ordinary and accepted meaning, and this meaning may be ascertained from a recognized dictionary. Town of Lafayette v. City of Chippewa Falls, 70 Wis.2d 610, 619, 235 N.W.2d 435 (1975); Edelman v. State, 62 Wis.2d 613, 620, 215 N.W.2d 386 (1974). Webster's New International Dictionary (3d ed.) lists a number of definitions of the word 'plant.' Some are supportive of the owners' position:
'--a factory or workshop for the manufacture of a particular product--a piece of equipment or a set of machine parts functioning together for the performance of a particular operation.'
Other definitions are more consistent with the Company's argument:
'--the land, buildings, machinery, apparatus, and fixtures employed in carrying on a trade or a mechanical or other industrial business.
'--the total facilities available for production or services in a particular country or place.
'--the physical equipment of an institution.'
In ascribing a meaning to the word 'plant' as here used, it is settled that the word is to be considered in its context within the statutory section as a whole. Omernik v. State, 64 Wis.2d 6, 11, 12, 218 N.W.2d 734 (1974). A court will always reject an unreasonable construction of a statute where a reasonable construction appears, and this is so...
To continue reading
Request your trial
-
Midcontinent Broadcasting Co. of Wisconsin, Inc. v. Wisconsin Dept. of Revenue
...: sec. 990.001(1), Stats.; Milwaukee County v. ILHR Dept., 80 Wis.2d 445, 450, 259 N.W.2d 118 (1977); Falkner v. Northern States Power Co., 75 Wis.2d 116, 123, 248 N.W.2d 885 (1977), thus, this court looked to the dictionary definition of this term and stated the word "hold" relates to poss......
-
Waller v. Am. Transmission Co.
...¶ 58 Wisconsin's condemnation procedures underwent significant revisions in 1959. Ch. 639, Laws of 1959; Falkner v. N. States Power Co., 75 Wis.2d 116, 120, 248 N.W.2d 885 (1977). Based on the legislative revisions, [i]t is apparent that the legislature intended to create two independent pr......
-
ASARCO Inc. v. E.P.A.
...seems an appropriate equivalent of a "plant," and "facility" is often used to refer to the latter, e.g., Falkner v. Northern States Power Co., 75 Wisc.2d 116, 248 N.W.2d 885, 901 (1977) (nuclear power station is a "facility"); Lincoln Bank & Trust Co. v. Exchange National Bank & Trust Co., ......
-
City of New Haven v. Town of East Haven
...v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S.W. 69; Vermont Hydro-Electric Corporation v. Dunn, supra ; Falkner v. Northern States Power Co., 75 Wis.2d 116, 248 N.W.2d 885; annot., Eminent Domain Property Not Used, 12 A.L.R. 1502, 1506; 1 Nichols, Eminent Domain (3d Ed.) § 2.2 "In deter......
-
CHAPTER 9 ACQUISITION OF RIGHTS-OF-WAY BY CONDEMNATION
...1971); Concerned Citizens v. Kansas Power & Light Co., 523 P.2d 755, 764 (Kan. 1974). See also Falkner v. Northern States Power Co., 248 N.W.2d 885 (Wis. 1977) (same basic argument as necessity, but couched in terms of no showing of public use). [83] An interesting exception is the decision......