Miller v. City of Wauwatosa

• Decision Date: 27 February 1979
• Docket Number: No. 76-410,76-410
• Citation: 87 Wis.2d 676,275 N.W.2d 876
• Parties: John P. MILLER, Plaintiff-Appellant, v. The CITY OF WAUWATOSA, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 876

275 N.W.2d 876

87 Wis.2d 676

John P. MILLER, Plaintiff-Appellant, v. The CITY OF WAUWATOSA, a municipal corporation, Defendant-Respondent.

No. 76-410.

Supreme Court of Wisconsin.

Argued Jan. 29, 1979.

Decided Feb. 27, 1979.

John P. Miller, plaintiff-appellant, appeals from an order vacating an injunction against the City of Wauwatosa, defendant-respondent, thereby allowing the city to proceed to reconstruct a portion of the street abutting the property of the appellant. The appellant also appeals from an order denying his motion for reconsideration.

Joseph C. Niebler, Milwaukee (argued), for appellant; John T. Clark, and Miller & Niebler, S.C., Milwaukee, on briefs.

Harold D. Gehrke, City Atty., Wauwatosa, for respondent.

Bronson C. La Follette, Atty. Gen., and Charles A. Bleck, Asst. Atty. Gen., filed brief, amicus curiae.

HANSEN, Justice.

The street involved in this litigation is a portion of North Menomonee River Parkway in the City of Wauwatosa. The appellant owns residential real estate which abuts the western edge of the parkway and is located in the Sheraton Lawns subdivision. At the time the plat was recorded in 1926, a 40-foot right-of-way was dedicated for roadway purposes.

In 1956, the subdivision was annexed to the city and the city improved and relocated the roadway by constructing a 24 foot concrete roadway within the 40 foot easement. The western edge of this roadway was 10 feet east of the appellant's property line. Apparently over the years the appellant used and maintained this 10 foot strip as a part of his lawn.

In 1966, the city acquired an additional 40 feet of land from Milwaukee County. This 40-foot strip of land is located east of and adjacent to the 40-foot roadway easement dedicated in the Sheraton Lawns subdivision. By resolution, in August, 1970, the city proposed to increase the width of the traveled portion of the road from 24 feet to 30 feet and move the paved or traveled portion of the road 15 feet to the east. Thus the western edge of the paved road would be 25 feet from the east property line of the appellant's property instead of 10 feet as it was before the road was moved to the east. Apparently the appellant now maintains this 25-foot strip of land as a part of his lawn.

The appellant objected to the improvement proposed in the August, 1970 resolution, contending that it constituted a "discontinuance" of the unused portion of the roadway and the city was therefore required to follow the procedure set forth in sec. 66.296(2), Stats. The city denied that the change in the location of the roadway, as declared by the resolution, constituted a discontinuance under the statute and proceeded with its plans to move the traveled portion of the road to the east.

In January, 1971, the appellant commenced an action to enjoin the proposed construction. The case was submitted on stipulated facts and the trial court granted a permanent injunction in July, 1971, which enjoined the city from proceeding with the construction. The court concluded that because the western 15 feet of the previously existing roadway would be eliminated for vehicular traffic, the proposed improvement resulted in a discontinuance of that 15 foot portion of the roadway and therefore required compliance with sec. 66.296(2), Stats. Sec. (c) thereof provides:

"(c) No discontinuance shall be ordered if a written objection to the proposed discontinuance is filed with the city or village clerk by any of the owners abutting on the portion sought to be discontinued . . . ."

Therefore, even if the city complied with the procedure set out in sec. 66.296(2), appellant's objection would effectively block the construction. The city did not appeal this decision, but rather sought relief through the legislature. Sec. 66.296 was subsequently amended in Chapter 46 of the Laws of 1975, by the addition of the following subsection:

"(2m) For the purpose of this section, the narrowing, widening, extending or other alteration of any road, street, lane or alley does not constitute a discontinuance of any part of the former road, street, lane or alley, including the right-of-way therefor, which is included within the right-of-way for the new road, street, lane or alley." (Emphasis added.)

The portion of the roadway which is the subject matter of this litigation was a part of the roadway established at the time it was dedicated for public use. This dedication occurred many years prior to the enactment of sec. 66.296 (2m), Stats., which became effective on August 19, 1975.

The parties approach the principal issue of the case using different concepts and we have considered all of the arguments advanced by the respective parties. However, we are of the opinion the issue is whether street alterations, such as are described by the facts of this case, require the city to follow the procedure set forth in sec. 66.296(2), Stats., in those instances where the street was dedicated prior to August 19, 1975, the effective date of sec. 66.296(2m).

At the insistence of the appellant the trial court had issued an injunction based upon its interpretation of sec. 66.296(2), Stats. Following the enactment of sec. 66.296(2m), the city adopted a proper resolution. The trial court then found that the impediment which was the basis of the previously issued injunction no longer existed. The injunction was accordingly vacated. As we understand the facts, the city has accomplished the change in the location of the roadway. Nevertheless, the appellant appeals from the order vacating the 1971 injunction. It is now the contention of the appellant that he has been deprived of property rights without due process of law or just compensation as guaranteed by the fourteenth amendment to the United States Constitution and Art. I, sec. 13 of the Wisconsin Constitution.

The appellant argues that by amending the statute to define "discontinuance" the legislature has retroactively deprived him of a reversionary interest in the land subject to the street easement. Sec. 66.296(2m), Stats., does not have such an effect on the appellant's reversionary interest.

It is undisputed that the owner of land abutting a public highway holds title to the center of the highway subject to the public easement. Walker v. Green Lake County, 269 Wis. 103, 111, 69 N.W.2d 252 (1955); Spence v. Frantz, 195 Wis. 69, 70, 217 N.W. 700 (1928); Hustisford v. Knuth 190 Wis. 495, 496, 209 N.W. 687 (1926); Mueller v. Schier, 189 Wis. 70, 81, 205 N.W. 912 (1926); Gardiner v. Tisdale, 2 Wis. 115 (*153) (1853). When the highway is discontinued or vacated the land reverts to the owner unencumbered by the easement. Id. This reversionary interest exists independently of sec. 66.296, Stats. As the cases above cited indicate, this right existed at common law. The right has been codified in sec. 80.32(3):

"80.32 Discontinuance of highways; reversion of title.

". . .

"(3) When any highway shall be discontinued the same shall belong to the owner or owners of the adjoining lands; if it shall be located between the lands of different owners it shall be annexed to the lots to which it originally belonged if that can be ascertained; if not it shall be equally divided between the owners of the lands on each side thereof."

This court has held that a city street is a public highway. Herbert v. Richland Center, 264 Wis. 8, 10, 58 N.W.2d 461 (1953).

It has been repeatedly held that although the alteration of a highway by changing its course is different from a proceeding to discontinue a highway, an alteration of an existing road constitutes a discontinuance of that part of the old road that is not included within the limits of the new road, even though no formal order of discontinuance is made. State ex rel. Schroeder v. Behnke, 166 Wis. 65, 68, 69, 162 N.W. 443 (1917); State ex rel. Funke v. Burgeson, 108 Wis. 174, 177, 84 N.W. 241 (1900); Witter v. Damitz, 81 Wis. 385, 388, 51 N.W. 575 (1892); State v. Reesa, 59 Wis. 106, 108, 17 N.W. 873 (1883); Hark v. Gladwell, 49 Wis. 172, 177, 5 N.W. 323 (1880). Unlike the instant case, these early cases generally involve the elimination of the entire width of a portion of an existing roadway by a relocation of that portion of the roadway.

Appellant relies on two cases in which this court held that an alteration of a street results in a discontinuance of a portion of the former street not included within the new street even though the discontinued portion abuts the street as altered. Grunwaldt v. Milwaukee, 35 Wis.2d 530, 151 N.W.2d 24 (1967); Miller Investment Co. v. Milwaukee, 209 Wis. 517, 244 N.W. 753 (1932). Neither of these cases addresses sec. 66.296, Stats. Also, Miller was decided prior to the enactment of sec. 66.296. We believe it is particularly significant that both Grunwaldt and Miller were actions to quiet title and not challenges to the procedure used in altering the location of a street.

Although appellant attempts to here challenge the alleged taking of his reversionary interest, he has not brought an action to quiet title. The trial court, unnecessarily, and we believe incorrectly, found that the amendment creating sec. 66.296(2m), Stats., retroactively eliminated the reversionary interest.

The statutory amendment expressly states that it defines discontinuance only "(f)or the purpose of this section." It cannot be held that the legislature intended that the amendment would be applicable to an alleged reversionary interest in a quiet title action. The amendment cannot be considered a retroactive elimination of the appellant's reversionary interest. Grunwaldt v. Milwaukee, Supra, 35 Wis.2d at 537, 151 N.W.2d 24.

This case is before the court on an appeal from an order vacating an injunction issued to restrain the city from making a street alteration because the city's 1971 resolution had not been adopted in compliance with the statutory procedure. Whether the alteration resulted in a reversionary-type discontinuance of...