Kamrowski v. State
| Decision Date | 07 June 1966 |
| Citation | 31 Wis.2d 256,142 N.W.2d 793 |
| Parties | John KAMROWSKI et al., Appellants, v. STATE of Wisconsin (State Highway Comm.), Respondent. |
| Court | Wisconsin Supreme Court |
Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellants.
Bronson, C. La Follette, Atty. Gen., William H. Wilker, Asst. Atty. Gen., Madison, for respondent.
Plaintiffs contend that 'scenic easements' cannot constitutionally be taken from them by the state even though just compensation be determined and paid. Their basic attack appears to be that public enjoyment of scenic beauty of certain land is not a public use of such land and that there are not sufficient standards limiting the action of the commission.
There is a considerable body of legislative history which clarifies the concept of 'scenic easement.'
In 1939, the legislature enacted sec. 84.105, Stats. 1 It declared the intent of assenting to any act of Congress authorizing the development of any national parkway located within Wisconsin and authorized the commission to perform duties required of the state, and to acquire necessary easements, by condemnation as well as by gift or purchase.
In 1949, Congress directed a survey of a national parkway along the Mississippi river. 2 The report thereon, entitled 'Parkway for the Mississippi,' was transmitted to Congress November 28, 1951, by the Bureau of Public Roads and National Park Service. It said, at page 10, 'The essence of the parkway concept is to provide a parklike corridor which insulates the motor road from uncontrolled development along the roadsides.' and pointed out that although many of the roadsides along the river were 'relatively clear of ribbon development,' land controls were essential because ribbon development will begin as tourists arrive in greater numbers.
On page 11 there appeared the following discussion of scenic easements:
In 1954 Congress referred to the report in appropriating funds to expedite planning of the Great River Road. 3
In 1955, our legislature amended sec. 84.105, Stats., so that the term 'national parkway' now includes the Great River Road or any other parkway projected in general accordance with the 1951 report. 4
In 1961, the legislature enacted ch. 427, Laws 1961, creating sec. 15.60, Stats., and other sections. Sec. 15.60(1)(b) asserted the legislative intent 'to authorize the expenditure of approximately $50,000,000 over the next 10 years for an outdoor recreation and resource development program.' $2,000,000 was allocated 'to protect scenic resources along highways.' Sec. 20.420(86) appropriated funds for the 'acquisition of scenic easements. * * *' Sec. 15.60(6) allocated priorities for a number of park and recreation projects. Sec. 15.60(6)(i), provides as follows:
Although we have found no express statutory definition of 'scenic easement,' its purpose and general meaning appear from the legislative history just recited. It is also clear that the legislature has determined that the protection of scenic resources along highways is a public purpose, has set the policy of acquiring scenic easements along particular routes, in order to protect such resources, and has delegated to the state highway commission the function of deciding the exact terms of the easements to be acquired, and of exercising the power of eminent domain to acquire them.
The concept of the scenic easement springs from the idea that there is enjoyment and recreation for the travelling public in viewing a relatively unspoiled natural landscape, and involves the judgment that in preserving existing scenic beauty as inexpensively as possible a line can reasonably be drawn between existing, or agricultural (and in these cases very limited residential) uses, and uses which have not yet commenced but involve more jarring human interference with a state of nature. We think both views can reasonably be held.
In Muench v. Public Service Comm. 5 where the court dealt with regulation of permits for dams, the court noted the recognition by the legislature that 'the enjoyment of scenic beauty is a public right,' and, in considering the standing of plaintiff to raise issues in that case, said:
'The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of scenic beauty, is a legal right that is entitled to all the protection which is given financial rights.'
Plaintiffs point out that a scenic easement does not permit the public nor any public agency to enter and occupy the lands in person. Then contend that physical occupancy is an essential element of a public use, and therefore that a scenic easement is not a public use.
Plaintiffs cite David Jeffrey Co. v. City of Milwaukee 6 which upheld a law authorizing condemnation as part of a procedure for elimination of blighted areas, but which pointed out the distinction between public use of property and incidental benefit derived by the public as a result of private use.
Quotations from other sources appearing in that opinion are as follows:
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