Highway Comm. of Jefferson Cnty. v. Guist

• Decision Date: 25 May 1940
• Citation: 235 Wis. 18,292 N.W. 226
• Parties: HIGHWAY COMMITTEE OF JEFFERSON COUNTY v. GUIST et al.
• Court: Wisconsin Supreme Court

235 Wis. 18

292 N.W. 226

HIGHWAY COMMITTEE OF JEFFERSON COUNTY

v.GUIST et al.

Supreme Court of Wisconsin.

May 25, 1940.

Appeal from an order of the County Court of Jefferson County; Marshall L. Peterson, Judge.

Reversed.

Application under sec. 83.07(3), Stats., by the Highway Committee of Jefferson county to the county judge of that county to appraise the value of land, sought to be taken for the relocation of a state highway under sec. 83.08, Stats., by condemnation proceedings in the manner provided by sec. 83.07(3), Stats. On the date set for the hearing the owners of the land Alvin D. Guist and wife, by their attorneys, addressing the court moved for the dismissal of the application upon the ground that the court did not have jurisdiction of the subject matter. The motion was granted by a formal order “by the court” dismissing the proceedings with costs. The Highway Committee appealed from that order.

John M. Kelley, Jr., of Fort Atkinson, for appellant.

Grady & Dakin, of Watertown, for respondents.

John E. Martin, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., amici curiae.

FRITZ, Justice.

[1] Upon the hearing of a motion noticed by the appellant, Highway Committee of Jefferson county, to have the appeal herein placed upon the current term calendar and advanced for a hearing because of the public interest involved, the respondents, Alvin D. Guist and wife, moved to dismiss the appeal on the ground that the only appeal authorized from an appraisal made by a county judge in a proceeding under sec. 83.07(3), Stats., is to the circuit court. See sec. 83.07(4), Stats. That is true when an appeal is taken after an appraisal has been made by a county judge in performing his duties in that capacity under sec. 83.07(3), Stats. However, in the proceedings at bar the county judge, instead of acting in solely that capacity, entertained respondents' motion addressed to the court for a dismissal; and thereupon entered an order “by the court” dismissing the proceedings for condemnation instituted by the appellants under sec. 83.07(3), Stats., as authorized by sec. 83.08(2), Stats. For reasons stated in Breckheimer v. Dane County, 209 Wis. 131, 244 N.W. 584, 585, the entry of that order by the court was clearly without any power or jurisdiction which the judge thereof had under sec. 83.07(3), Stats. As we said in Breckheimer v. Dane County, supra, “No judgment and no proceeding whatsoever, in the countycourt, is authorized upon an application to the county judge under sections 83.07 and 83.08, Stats. *** If in the matter at bar the county judge had merely filed such an award instead of entering the judgment which has resulted in this appeal, there could not have been a review thereof on an appeal directly to this court. However, as a judgment was entered it was proper to appeal therefrom; and as that judgment was entered without jurisdiction, it is void and must be reversed.”

As, in the matter at bar, an order was likewise entered “by the court” without jurisdiction, an appeal therefrom to this court was proper, and as the court entered the order without jurisdiction, it is void and subject to a reversal on that ground.

[2] Moreover, it was also clearly error to dismiss the condemnation proceedings upon the ground relied upon by the respondents. They contend that, because the area of the land as to which the appellant instituted the condemnation proceedings in the manner provided by sec. 83.07, Stats., exceeds two acres, the procedure under subsec. (3) thereof was not applicable or authorized in relation to that land. That contention was sustained by the judge upon his conclusion that the appellant's petition showed that the land was to be acquired for highway purposes only, and not for the purposes mentioned in subsections (2) and (2a) of sec. 83.07, Stats. The respondents' contentions and the ruling thereon are unsound. At all times since the provisions which are now in secs. 83.08 and 83.07 (with the exception of subsec. (2a) of the latter section) were revised, amended and renumbered by Chs. 108 and 446, L.1923, there has been in sec. 83.08, which provided for the acquisition of land needed for the construction, improvement or relocation of a state highway, the provision in subsec. (2) thereof that, “If for any reason the needed lands cannot be acquired by easement, conveyance or deed for a reasonable price, the county highway committee shall acquire the same either by condemnation proceedings in the manner provided by chapter 32 of the statutes or by section 83.07 ***.”

Therefore, ever since the enactment of Chs. 108 and 446, L.1923, county highway committees have been authorized to acquire lands needed for the purposes mentioned in sec. 83.08 by condemnation proceedings in either the manner provided by sec. 83.07 or by Ch. 32. That authorization to proceed in the manner provided by sec. 83.07(3), Stats., has not been abrogated or impaired in any...