Leininger v. Cnty. Highway Comm. of Pierce Cnty.
| Decision Date | 08 January 1935 |
| Citation | 258 N.W. 368,217 Wis. 61 |
| Parties | LEININGER ET AL. v. COUNTY HIGHWAY COMMITTEE OF PIERCE COUNTY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Pierce County; George Thompson, Circuit Judge. Affirmed.
These were proceedings under chapter 32, Stats. (section 32.01 et seq.), commenced April 11, 1934, by John Leininger, Louisa Brockmeier, and Minnie Wehrman, plaintiffs, to assess damages for the taking of their property by defendant County Highway Committee of Pierce County, upon the relocation of state highway 34. On November 29, 1932, the county committee made an award to plaintiffs of damages for the taking, the award being made under section 83.08 (2), Stats. Plaintiffs appealed from the award to the county judge of Pierce county to appraise their damages, and the county judge assessed these damages at $1,123.18. The county committee, in accordance with the authority conferred by section 83.07, then appealed to the circuit court and the proceedings were thereafter governed by section 32.11, Stats. The case was tried to the court and a jury. The jury found the fair value of plaintiffs' farm at the time of the taking to be $3,120, and the fair value after taking $2,220. The court submitted to the jury questions requiring it to find the amount allowed for different elements of damage, and the jury found as follows: For obstruction of surface water, $750; obstruction of view, $100; obstruction to circulation of air, none; cost of necessary fencing as a result of the relocation, $50. The court granted judgment for plaintiffs for $150. Plaintiffs appeal. The facts will be stated in the opinion.
W. G. Haddow, of Ellsworth, for appellants.
White & White, of River Falls, and T. A. Waller, Dist. Atty., of Ellsworth, for respondent.
At or about the time the county committee made its award to plaintiffs, the state highway commission took possession of plaintiffs' land and commenced construction of the new highway; this work being completed in October, 1933. The construction called for a fill in front and to the north of plaintiffs' buildings, 400 feet long and 30 feet high. The fill is 140 feet from plaintiffs' barn and 178 feet from the dwelling house. This resulted in putting plaintiffs' buildings in a depression or pocket, and it is contended that due to the topography of the land, the fill creates constant danger of flooding. On June 5, 1933, after the construction of the fill, which contained a culvert 6 feet in diameter and 167 feet long, surface water backed up from the culvert and flowed into the barn on the premises. There is no stream of water running through the valley across which this fill was constructed, and the water involved is all surface water caused by rains.
The first question involved is whether plaintiffs may recover in these proceedings not merely the value of the land taken for a right of way, and such damages as may result from the mere physical presence of a highway upon the land condemned, but whether plaintiffs may also recover for all damages created by the structure constituting the highway.
[1][2] It is recognized in this state, with respect to condemnation of railroad rights of way, that plaintiff is entitled to damage for inconvenience, trouble, and danger of crossing the track with cattle, agricultural implements, exposure of grain and other property to fire, liability of horses to become frightened at passing trains, etc. Snyder v. Western Union R. Co., 25 Wis. 60;Driver v. Western Union R. Co., 32 Wis. 569, 14 Am. Rep. 726;Weyer v. Chicago, Wisconsin & Northern R. Co., 68 Wis. 180, 31 N. W. 710. It is evident that damages are recoverable in condemnation proceedings for such impairment as results from the presence of a highway or railroad or power line on or adjacent to the remainder of plaintiff's property. These are the damages that result from the general character of the use to which the right of way is to be put, and are incident to the taking. It is equally well established in this state that damages based upon the negligent or improper manner or design of construction cannot be assessed in condemnation proceedings. Neilson v. Chicago, M. & N. W. Ry. Co., 58 Wis. 516, 17 N. W. 310;Jewell v. Wisconsin-Minnesota L. & P. Co., 181 Wis. 56, 194 N. W. 31.
It is our conclusion that plainti...
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