Kyncl v. Kenosha County

• Decision Date: 30 January 1968
• Citation: 155 N.W.2d 583,37 Wis.2d 547
• Parties: Carl KYNCL et al., Appellants, v. KENOSHA COUNTY, a municipal corporation, Respondent. John HANSCHE, Administrator of the Estate of John W. Hansche, Deceased, John Hansche and Mary Hansche, his wife, Edna Ward, Charles W. Hansche and Ruth Hansche, his wife, and Grace Knipp, Plaintiffs-Appellants, v. KENOSHA COUNTY, a Municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 583

155 N.W.2d 583

37 Wis.2d 547

Carl KYNCL et al., Appellants, v. KENOSHA COUNTY, a municipal corporation, Respondent.

John HANSCHE, Administrator of the Estate of John W.

Hansche, Deceased, John Hansche and Mary Hansche, his wife, Edna Ward, Charles W. Hansche and Ruth Hansche, his wife, and Grace Knipp, Plaintiffs-Appellants, v. KENOSHA COUNTY, a Municipal corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Phillips & Richards, Antaramian & Antaramian, Kenosha, for appellants.

Heide, Sheldon, Hartley & Thom, W. A. Sheldon, Kenosha, for respondent.

BEILFUSS, Justice.

The issue is whether Kenosha County was a party to the condemnation award within the meaning of sec. 32.05(9), Stats., so that service on the county was sufficient to give the court jurisdiction over the necessary parties.

When land is needed for state trunk highway improvement the state highway commission may provide for its acquisition under sec. 84.09, Stats. Sub. (1) provides that the commission may take the necessary action to acquire the land and, if it does, title to the land shall be taken in the name of the state. By virtue of sub. (3)(a) the commission may order that all or part of the land be acquired by the county highway committee and, if so, title is taken in the name of the county. Under sub. (3m) the commission may order a board commission or department of a city to acquire lands located within the city and in those instances title is taken in the name of the state.

As the trial court noted in its memorandum opinion, a copy of the relocation order of the state highway commission and copies of the awards were not presented to the court. Consequently, these documents are not of record on appeal. The plaintiffs' petitions before the trial court stated, however, that the county highway committee of Kenosha county, acting pursuant to authority vested in it by the state highway commission of Wisconsin and pursuant to statute, condemned the properties of the plaintiffs for state trunk highway purposes. We, therefore, assume the state highway commission ordered the county highway committee of Kenosha county to acquire the land of the appellants.

Sec. 84.09(3)(a), Stats., provides:

'The commission may order that all or certain parts of the required land or interests therein be acquired by the county highway committee. When so ordered, the committee and the commission shall appraise and agree on the maximum price, including damages, considered reasonable for the lands or interests to be so acquired. The committee shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, as directed in the commission's order. The instrument of conveyance shall name the county as grantee, shall be subject to approval by the commission, and shall be recorded in the office of the register of deeds and filed with the commission. If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the county highway committee may acquire them by condemnation under ch. 32.'

The plaintiffs' appeals from the awards were taken directly to the circuit court for Kenosha county in accordance with the provisions of sec. 32.05(11), Stats.: ¹

'Waiver of Hearing Before Commission; Appeal to Circuit Court and Jury. The owner of any interest in the property condemned named in the basic award may elect to waive the appeal procedure specified in sub. (9) and instead, within 2 years after the date of taking, appeal to the circuit court of the county wherein the property is located. The notice of appeal shall be served as provided in sub. (9)(a). Filing of the notice of appeal shall constitute such waiver. The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein and shall have precedence over all other actions not then on trial. The sole issues to be tried shall be questions of title, if any, under ss. 32.11 and 32.12 and the amount of just compensation to be paid by condemnor. It shall be tried by jury unless waived by both plaintiff and defendant. The amount of the jurisdictional offer or basic award shall not be disclosed to the jury during such trial. Where one party in interest has appealed from the award, no other party in interest who has been served with notice of such appeal may take a separate appeal but may join in the appeal by serving notice upon the condemnor and the appellant of his election to do so. Such notice shall be given by certified mail or personal service within 10 days after receipt of notice of the appeal and shall be filed with the clerk of court. Upon failure to give such notice such parties shall be deemed not to have appealed. The appeal shall not affect parties who have not joined in the appeal as herein provided. In cases involving more than one party in interest with a right to appeal, the first of such parties filing an appeal under sub. (9) or under this subsection shall determine whether such appeal shall be under sub. (9) or directly to the circuit court as here provided. No party in interest may file an appeal under this subsection if another party in interest in the same lands has filed a prior appeal complying with the requirements of sub. (9). In cases involving multiple ownership or interests in land taken the provisions of s. 32.05(9)(a) 1, 2 and 3 shall govern.' (Emphasis supplied)

As the statute provides, to commence such an action a notice of appeal must be served as provided in sec. 32.05(9)(a), Stats.:

'Any party having an interest in the property condemned may, within 2 years after the date of taking, appeal the award * * * Such application shall contain a description of the property condemned and the names and last known addresses of all parties in interest * * * Notice of such application shall be given to the clerk of the court and to all other persons other than the applicant who were parties to the award. * * *'

Sec. 32.05(11), Stats., expressly makes the 'condemnor' the defendant. As such, the condemnor is clearly entitled to notice under sec. 32.05(9)(a), being both a party to the award and an 'interested party.'

The last sentence of sec. 84.09(3)(a), Stats., provides: 'If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the county highway committee may acquire them by condemnation under chapter 32.' Respondent urges the county highway committee, not the county, is the 'condemnor'...