McKenna v. State Highway Commission

• Decision Date: 25 June 1965
• Citation: 135 N.W.2d 827,28 Wis.2d 179
• Parties: John C. McKENNA, Jr., et al., Appellants, v. STATE HIGHWAY COMMISSION of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 827

135 N.W.2d 827

28 Wis.2d 179

John C. McKENNA, Jr., et al., Appellants, v. STATE HIGHWAY COMMISSION of Wisconsin, Respondent.

Supreme Court of Wisconsin.

June 25, 1965.

Aberg, Bell, Blake & Metzner, Madison, for appellants.

Bronson C. La Follette, Atty. Gen., and Richard E. Barrett, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

This appeal raises two issues: ²

1. Does the complaint state a cause of action for damages caused by the commission's closing of Whitcomb Drive, which changed the petitioners' access from direct to dircuitous?

2. Does the commission have authority pursuant to sec. 84.25(3), Stats. (controlled-access highways) to close off accesses without compensation if the area is no longer rural?

We agree with the conclusion of the trial court that the closing of Whitcomb Drive where it intersects the Madison Beltline, a controlled-access highway, does not state a cause of action for inverse condemnation. ³

There is no taking in the sense required by the statute, where, as in this case, another access route is available. This is not to say, however, that there can be no taking unless there is a physical occupation, for as we have previously indicated a deprivation of all access would constitute a compensable taking. Stefan Auto Body v. State Highway Comm., (1963), 21 Wis.2d 363, 368, 124 N.W.2d 319.

In the facts before us it appears that prior to the designation of the Beltline as a controlled-access highway, the petitioners enjoryed the use of a private driveway entering onto the Beltline. Subsequently, when petitioners developed their property, they platted the designated Whitcomb Drive as a public street. The platting of that private road as a public street and its subsequent use as such constituted a dedication to the public. The highway commission by its order of July 2, 1964, deprived the petitioners of access to the Beltline at its intersection with Whitcomb Drive. However, access, though less convenient, remains via either Gilbert Road or Hammersley Road.

Under these circumstances the situation is not unlike the one found in Stefan Auto Body v. State Highway Comm. (1963), 21 Wis.2d 363, 124 N.W.2d 319. We there held that though a property owner is deprived of direct access to a highway, that this does not constitute a compensable taking or property provided that reasonable access remains.

In Nick v. State Highway Comm., supra, we relied on the precedents arising out of the use of the police power in zoning cases and stated that the diminution of value of land because access to the highway was made more circuitous was not compensable. See also Carazalla v. State (1955), 269 Wis. 593, 608a, 70 N.W.2d 208, 71 N.W.2d 276.

We therefore hold that the fact that the petitioner McKenna is deprived of Beltline access at Whitcomb Drive does not result in a taking of property which constitutes a cause of action for inverse condemnation under sec. 32.10, Stats.

The petitioners claim, however, that the exchange between McKenna and the highway commission which culminated in the letter of November 9, 1949, constitutes a contract between the parties whereby the highway commission agreed to a grant of permanent access to the Beltline via Whitcomb Drive.

However, this court views the transaction as merely an offer by McKenna to dedicate the theretofore existing farm driveway as a public street. Certainly, the condition which McKenna met that he would include in the plat the provision that access was not permitted to the Beltline, cannot be considered as consideration for a contract, since the property owners do not as a matter of right have ingress or egress to a controlledaccess highway. We believe it is clear that the trial judge correctly interpreted this provision when he said that its purpose was:

'* * * to avoid future botheration from plaintiff's grantees for access to the Beltline all of which the Commission of course would have the right to deny * * * and that the Commission was by its requirement in the letter merely serving notice in advance that such petitions by plaintiff's grantees would be rejected.'

It appears that no contractual relationship in fact existed. Even had there been one, it is a recognized rule of constitutional law that neither a state nor its agencies can bargain or contract away its police power. ⁴ State v. Sensenbrenner (1952), 262 Wis. 118, 124, 53 N.W.2d 773, and Chicago St. P., M. & O. R. Co. v. Douglas County (1908), 134 Wis. 197, 207, 114 N.W. 511; La Crosse Rendering Works v. La Crosse (1939), 231 Wis. 438, 285 N.W. 393, 398, 124 A.L.R. 511. As we have said repeatedly the control of access to out highways is a proper exercise of that power. Carazalla v. State, supra.

Nor is the doctrine of estoppel applicable here as the plaintiffs claim. It is essentially their claim that having relied upon the permanency of the access via Whitcomb Drive that the highway commission is now estopped from closing the access point.

However, in addition to good faith reliance, which is arguably present here, there must be such inequitable conduct as to amount to fraud. City of Jefferson v. Eiffler (1962), 16 Wis.2d 123, 113 N.W.2d 834. There is no claim that any such...