Howell Plaza, Inc. v. State Highway Commission

• Decision Date: 17 February 1975
• Docket Number: No. 330,330
• Citation: 66 Wis.2d 720,226 N.W.2d 185
• Parties: HOWELL PLAZA, INC., a Wisconsin Corp., Respondent, v. STATE HIGHWAY COMMISSION, Appellant.
• Court: Wisconsin Supreme Court

Page 185

226 N.W.2d 185

66 Wis.2d 720

HOWELL PLAZA, INC., a Wisconsin Corp., Respondent, v. STATE HIGHWAY COMMISSION, Appellant.

No. 330.

Supreme Court of Wisconsin.

Feb. 17, 1975.

Robert W. Warren, Atty. Gen., Charles A. Bleck, Asst. Atty. Gen., Madison, for appellant.

Jeffrey S. Schuster, Hersh & Stupar, S.C., Milwaukee, for respondent.

HEFFERNAN, Justice.

Howell Plaza, Inc., a shopping center corporation, petitioned the circuit court to order the State Highway Commission to proceed with the condemnation of the property of the Howell Plaza Corporation, which the petitioner claims has been 'occupied' by the commission, but in respect to which it has not undertaken condemnation proceedings. In response to the petition, the commission moved to dismiss because Howell Plaza did 'not state facts sufficient to constitute a cause of action or to bring said claim within the purview of ch. 32, Wis. Stats.' The trial judge, correctly, we believe, treated the motion to dismiss as a demurrer. He concluded that the facts alleged in the petition were sufficient to bring the underlying situation within the purview of sec. 32.10, Stats., the inverse condemnation law. The State Highway Commission has appealed from this order and also reasserts its claim that the court was without jurisdiction over the defendant.

We hold that the trial judge correctly concluded that jurisdiction was properly obtained over the State Highway Commission. We conclude, however, that the petition failed to state a cause of action. The trial court's order must be reversed.

The petition seeks to invoke the procedure authorized under sec. 32.10, Stats., which provides:

'32.10 Condemnation proceedings instituted by property owner. Whenever any property has been occupied by a body possessing the power of condemnation but where such body has not exercised said power, the owner, if he desires to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. Such petition shall describe the land, state the board, commission or corporation against which the condemnation proceedings are instituted and the use to which it has been put or is designed to have been put by the board, commission or corporation against which the proceedings are instituted. A copy of said petition shall be served upon the board, commission or corporation which has occupied petitioner's land, or interest in land. The petition shall be filed in the office of the clerk of the circuit court and thereupon the matter shall be deemed an action at law and at issue, with petitioner as plaintiff and the board, commission or corporation as defendant. The court shall thereupon make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. If the court determines that the defendant is occupying such property of the plaintiff without having the right to do so, it shall treat the matter in accordance with the provisions contained in this chapter assuming the plaintiff has received from the defendant a jurisdictional offer and has failed to accept the same and assuming the plaintiff is not questioning the right of the defendant to condemn the property so occupied.'

Additionally, art. I, sec. 13, of the Wisconsin Constitution is relevant, inasmuch as ch 32 of the Wisconsin Statutes, Emminent Domain, is based upon the constitutional provision that 'The property of no person shall be taken for public use without just compensation therefor.'

In order for the petitioner to succeed in the initial stages of the inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under sec. 32.10, Stats., or a taking, which must be compensated under the terms of the Wisconsin Constitution. Peripherally, the question of whether the petitioner has been deprived of its property without due process of law is also implicitly raised in the proceedings. Inasmuch as the matter before us is substantially a question raised on demurrer, the petitioner can only be said to have a cause of action if from the four corners of the complaint it can be ascertained that the facts which are assumed to be true show the conduct of the State Highway Commission would constitute either a taking or occupation of the petitioner's property.

The facts alleged are these:

'5. That for a considerable period of time, the defendant (State Highway Commission) has been engaged in a process of plotting, planning, and acquiring property in anticipation of public improvement for the construction of the Beltline Freeway system and that such acts have included:

'(a) Public proclamations for several years prior to 1969, by the defendant, about the proposed route of the freeway;

'(b) That there were statements prior to July 30, 1970, that acquisitions for construction of the Beltline Freeway would occur in early 1972;

'(c) That the defendant has negotiated with and acquired properties in the proposed freeway system;

'(d) That notice has been given to tenants, property owners and prospective owners and tenants of the imminence of condemnation;

'(e) That the defendant has had appraisals made of property within the district;

'(f) That announcements have been made that fair and just amounts of compensation would be paid for properties taken for the freeway system;

'(g) That the city fathers of Oak Creek, Wisconsin, at the insistence of the defendant, have urged the petitioner to forego any development of its property due to the imminence of the freeway system.'

It is also alleged that the property owned by the petitioner lies within a corridor which the planners have designated for acquisition. Paragraph 7 states that, without the payment of just compensation, the commission 'acquired' petitioner's property. We deem that the allegation in Paragraph 7 is a mere conclusion of law and does not constitute the allegation of an ultimate fact necessary to sustain the cause of action.

The petitioner further states that the acts by which the commission 'acquired' the property were those listed in Paragraph 5 of the petition. Hence, only if it could be said that the facts alleged in Paragraph 5 are sufficient, if proved, to show a taking or occupation, can it be held that a cause of action has been stated under sec. 32.10, Stats.

In interpreting the provisions of the eminent domain chapter of the statutes and the constitutional definition of 'taking,' this court has strictly interpreted them to distinguish between the actual use or occupation by a condemning authority and those hardships or incidents of the condemnation procedure that are only consequential to the exercise of the power of eminent domain. In a strong statement, a statement perhaps overly strong, this court in Muscoda Bridge Co. v. Worden-Allen Co. (1928), 196 Wis. 76, 88, 219 N.W. 428, 433, strictly construed the constitutional and statutory provisions. The court said 'It is only where those authorized to exercise the power of eminent domain are actually in the possession of, and enjoying the use of, property that the owner thereof of is remitted to the proceedings under chapter 32.'

At the time of the opinion in the Muscoda Bridge case, the inverse condemnation provision now appearing as sec. 32.10, Stats., had already been incorporated into the law; and, hence, it seems clear that the court was dealing with a statute that was similar to the one before the court in the instant case.

In More-Way North Corp. v. State Highway Comm. (1969), 44 Wis.2d 165, 169, 170 N.W.2d 749, we pointed out that, in all proceedings brought under the power of eminent domain, there must be a 'taking' before there can be a claim for just compensation. More-Way relies upon Wisconsin Power & Light Co. v. Columbia County (1958), 3 Wis.2d 1, 87 N.W.2d 279, wherein this court extensively discussed provisions that require compensation for a 'taking.' In the Columbia County case, we said:

'. . . mere consequential damage to property resulting from governmental action is not a taking thereof. Sec. 13, art. I, Wis.Const., like its equivalent in the federal constitution, 'does not undertake, . . . to socialize all losses, but only those which result from a taking of property.' United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101. Thus impairment of the value of plaintiff's farm by odors from a municipal sewerage disposal plant is not a taking. Hasslinger v. Village of Hartland, 234 Wis. 201, 206, 290 N.W. 647, nor is partial obstruction of ingress to and egress from plaintiff's property, and the view therefrom, by a municipal shelter a taking of the property. Randall v. Milwaukee, 212 Wis. 374, 382, 383, 249 N.W. 73. See also State ex rel. Saveland P.H. Corp. v. Wieland, 269 Wis....