More-Way North Corp. v. State Highway Commission, MORE-WAY
| Decision Date | 03 October 1969 |
| Docket Number | No. 134,MORE-WAY,134 |
| Citation | 44 Wis.2d 165,170 N.W.2d 749 |
| Parties | NORTH CORP., Respondent, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant. |
| Court | Wisconsin Supreme Court |
The respondent, More-Way North Corporation, owns and operates a discount department store located on an eight-acre parcel of land, which it also owns, in the city of Milwaukee. More specifically, the property is at the north-east corner of the intersection of West Appleton avenue (U.S. Highway 41) and West Carmen avenue. More-Way is surrounded by a parking area available for use by the store's customers.
On April 23, 1965, the appellant, State Highway Commission of Wisconsin, passed an order which provided for the improvement and reconstruction of U.S. Highway 41 in Milwaukee county. The improvement of Highway 41 consisted of lowering the grade by three to four feet. As a result of this lowering of the grade, More-Way reconstructed certain portions of its parking area and it claims approximately 42 parking spaces were lost because of this reconstruction.
On September 16, 1965, the Highway Commission submitted a jurisdictional offer to More-Way for the purpose of purchasing or condemning a limited highway easement in the lands owned by it. This jurisdictional offer contained the following provisions:
'* * *
'C. Pursuant to sec. 32.05(3)(d), Wisconsin Statutes, the above purchase price is allocated as follows:
'(a) Loss of land, including improvements and fixtures actually being acquired (Limited Highway Easement only) $400.00
'* * *
'(f) Damages to property abutting on a highway right of way due to change of grade $9,600.00
'* * *.'
More-Way did not accept this offer and the Highway Commission then condemned the interest it sought to acquire. An award of damages was made and recorded on October 19, 1965. More-Way appealed the award and after a hearing, a new award was made by the county condemnation commissioners. The Highway Commission appealed that award to the circuit court for Milwaukee county where the matter was tried before a jury. Both parties agreed that the Highway Commission did not acquire the fee title to any part of More-Way's land and that the physical boundaries of the land were not changed.
The jury, by special verdict, found that More-Way was permanently deprived of the beneficial use of its property as a result of the change in grade of the highway and that the fair market value of the property immediately before the taking on October 19, 1965, was $850,000. The jury also found that the fair market value of the property immediately after the completion of the restoration of the property to a useable state after the completion of the lowering of the grade of the highway was $828,000.
Judgment was entered in favor of More-Way for $14,014.83 (850,000--828,000, or 22,000--10,000 already paid by Highway Commission = 12,000 plus 1,753.33 interest and 261.50 costs and disbursements=$14,014.83).
The Highway Commission appeals.
Appeal from Circuit Court, Milwaukee County; L. J. Foley, Jr., Judge.
Robert P. Russell, Corp. Counsel, Joseph J. Esser, Asst. Corp. Counsel, Milwaukee, for appellant.
Foley, Sammond & Lardner, Milwaukee, Eugene C. Daly, Milwaukee, of counsel, for respondent.
The central issue on this appeal is whether there was a taking of More-Way property for public use entitling More-Way to just compensation under the requirements of the Wisconsin Constitution, which provides, under art. I, sec. 13, as follows:
'The property of no person shall be taken for public use without just compensation therefor.'
This constitutional term 'just compensation' has never been construed as requiring payment for all injuries imposed upon persons or property by acts of government. 1
There is a distinction between the power of eminent domain, which is assumed to be concurrent with an obligation to compensate, 2 and the police power, which is assumed to represent the power of government to impose injuries upon property without the payment of compensation. 3 This distinction is the source of much of the confusion permeating the legal rules surrounding condemnation awards.
At the cornerstone of all condemnation proceedings giving rise to a claim for just compensation there must be a taking.
In discussing the constitutional provision requiring compensation for the taking, this court, in Wisconsin Power & Light Co. v. Columbia County, 4 said:
5 (Citations and emphasis in original.)
It is More-Way's position in the instant case that the acquisition by the Highway Commission of a limited highway easement over its land, together with the lowering of the grade of Highway 41, and the resulting necessity to reconstruct and regrade portions of the parking lot, thus causing the alleged loss of 42 parking spaces, was a taking of land within the meaning of the constitutional provisions and within the meaning of sec. 32.09(6), Stats. Thus, More-Way argues, although there was no taking of land in fee, the Highway Commission should be liable to it for permanently depriving it of a portion of the beneficial use of part of its property, with resulting diminution in the fair market value of its property, computed by the jury as $22,000.
The record reveals: (1) that the Highway Commission did not obtain title in fee to any part of More-Way's land; (2) that the limited highway easement was used for the purpose of transporting and parking the commission's work vehicles while the regrading was going on and encompassed a strip of More-Way's land with an area of approximately 7,000 (6,784) square feet; (3) that the Highway Commission offered to pay More-Way $400 for such use of its land; (4) that this limited highway easement has since terminated; (5) that in lowering the grade of the highway, More-Way also sloped and removed an unspecified amount of earth from its land 6 but that the actual physical boundaries of More-Way's land were not changed, even though the actual topography was changed; (6) that the actual cost to More-Way to repair and reconstruct the damaged portions of its parking area was approximately $13,000; and (7) that there is a dispute as to whether More-Way actually lost 42 parking spaces, with the Highway Commission contending that since the actual number of spaces existing prior to the reconstruction was not actually determined it is impossible to find that any parking spaces were lost.
The Highway Commission contends that since there was no land lost, no parking spaces could have been lost.
More-Way claims there was a taking since even though no land was taken in fee, More-Way was deprived of the best beneficial use of part of its property by the required sloping off of its parking lot with the resulting alleged loss of 42 parking stalls. On the other hand, the Highway Commission contends that this was not a taking within the meaning of art. I, sec. 13 of the Wisconsin Constitution, or sec. 32.09(6), Stats.
So the question remains: Was there a taking?
This court, in Colclough v. Milwaukee, 7 said:
'It was held in Harrison v. Board, 51 Wis. (645,) 647, 662, 8 N.W. 731, to be the settled law in this state that in the absence of any law giving the owners of real estate adjoining a public street or highway a right to recover damages of the city, village, town, or county in which the same is situated, on account of the change of the grade of such street or highway, no damages can be recovered on account of such change, unless the premises of the adjoining or abutting owner have been injured through the negligence of the municipality or its agents in making such change, and that such change of grade is not, in any case, the taking of private property for public use.' 8 (Emphasis added.)
Then in Dahlman v. Milwaukee, 9 this court said:
* * *' 10
'* * * This court has consistently and frequently held that, in the absence of express statute, a city is not liable for consequential damages to an adjoining property owner resulting from the lawful change of grade of a street, unless the work be negligently done and injury results from such negligence.' 11 (Citations omitted.)
Nichols, in his treatise on Eminent Domain, has stated that the term 'consequential damages' is...
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