Muscoda Bridge Co. v. Grant Cnty.

• Decision Date: 03 December 1929
• Citation: 227 N.W. 863,200 Wis. 185
• Parties: MUSCODA BRIDGE CO v. GRANT COUNTY.
• Court: Wisconsin Supreme Court

200 Wis. 185

227 N.W. 863

MUSCODA BRIDGE CO

v.GRANT COUNTY.

Supreme Court of Wisconsin.

Dec. 3, 1929.

Appeal from a judgment of the Circuit Court of Grant County; S. E. Smalley, Circuit Judge.

Condemnation proceedings by Grant County against the Muscoda Bridge Company. From the award of the commissioners, the bridge company appealed to the circuit court as a party plaintiff. From the judgment entered, Grant County as defendant appeals. Reversed, and remanded for new trial.--[By Editorial Staff.]

The appeal is from a judgment entered on the verdict of a jury in proceedings for condemnation of a strip through the land of the plaintiff on the Grant county side of the Wisconsin river and across the river bed to the thread of the stream for the construction of a free bridge and its approach on state trunk highway 80. The strip taken is about 100 feet wide. The plaintiff's land on the Grant county bank consists of five lots fronting the river. On the Richland county side, the company owns 22 acres, and like proceeding is pending in that county to condemn a like strip through these lands and in the bed of the river. A tollbridge owned by plaintiff is located on its said land about 100 feet upstream from the condemned strip. This bridge is now, and for about 40 years has been, operated by the plaintiff. A rock ledge about 500 feet wide occupies the river bed between the two banks at the bridge sites. There is no other rock bottom on the river for several miles either way. This ledge is particularly suitable and desirable as a bridge site, and renders the cost of construction of piers and abutments much less than it would be otherwise. The ledge is also suitable for a dam site if the terrain upstream is suitable for a reservoir and the fall is sufficient for development of power, but there is no testimony to these points. The condemned strip passes through one of the plaintiff's five lots on which an eight-room dwelling house and a garage are situated. The dwelling house faces the highway as it is now located. As relocated the highway will pass back of the house, and the relocation will require removal of the garage. The Grant county end of the bridge site is at the village of Muscoda. The river bank is high at the place and affords the only suitable place on the river for a boat landing and dock for several miles. There has been no use or attempted use of the river for freight or passenger transportation for years, and the evidence does not show any such prospective navigation. The county court assessed the plaintiff's damage at $1,706; the jury assessed it at $5,750. The value of plaintiff's property, including the tollbridge, as testified by the plaintiff's witnesses, ranged from $35,000 to $80,000, 60 per cent. of which the witnesses allocated to the Grant county side of the river. These witnesses ranged the value of the property after taking the strip from nothing to $10,000. They valued the submerged strip taken at from $7,000 to $50,000. Defendant's witnesses testified the submerged strip had no market value. The plaintiff's witnesses ranged the damage to the land on the bank on the Muscoda side of the river from $1,500 to $2,000 and the defendant's from nothing to $800.John W. Reynolds, Atty. Gen., Suel O. Arnold, Asst. Atty. Gen., and Manfred S. Block, Dist. Atty., of Platteville, for appellant.

Kopp & Brunckhorst, of Platteville, for respondent.

FOWLER, J.

[1] Two of appellant's contentions relate merely to matters of practice, and these will be first considered. The defendant made a timely demand for a special verdict and as such verdict requested submission of two questions: (1) What was the fair market value of the strip of land taken? and (2) In what amount, if any, was the fair market value of the real estate of plaintiff which was not taken damaged by the taking of the strip, considering only the uses to which the real estate was put at the time of the taking? The court refused these questions and submitted to the jury one question: What sum will compensate the plaintiff for the damages it will sustain as a result of the relocation of the highway in question through its land? The defendant urges that the question submitted was not a special verdict, and that, if it was such, the court erred to defendant's prejudice in not submitting two questions in substance as by it requested.

The special verdict statute (section 270.27, Wis. Stats.) provides that the court shall on timely request submit a case on special verdict, by which is meant submitting to the jury for answer specific questions incorporating the controverted issues of ultimate fact. There is only one issue of ultimate fact in this case. It is: What is plaintiff's damage? The court might properly have submitted to the jury two questions, the answers to which would have formed a basis for determining the ultimate fact of damage, and in most condemnation cases it is perhaps preferable to do so. But it was in the discretion of the trial judge to cover the ultimate issue by one or two questions as he saw fit. Ordinarily, where the issue is simply what damage an owner has sustained by the taking of a strip or parcel of land for a road or other public use, two questions may well, perhaps best, be put, in substance, as follows: (1) What was the fair market value at the time of the taking of the owner's land, considered as a whole? and (2) What was its such value after the taking? The difference will be the damage. While such submission might have been better here, the trial judge might properly, in his discretion, submit the issue of damage as he did. The use of the phrase “relocation of the highway” instead of “taking the strip of land” was unhappy, if not faulty. The latter phrase would have been better as calling attention more directly to the precise fact in issue.

The questions requested by defendant were formed to accord with the statement of the elements of damage contained in such cases as Jeffery v. Chicago & M. E. R. Co., 138 Wis. 1, 119 N. W. 879, and Jeffery v. Osborne, 145 Wis. 351, 129 N. W. 931. The idea there expressed is that the landowner is entitled (1) to the value of the strip taken considered as a separate entity; and (2) to the amount by which the remainder of the land is diminished by reason of the taking of the strip. As to (1), the market value, for example, of a strip through a farm consisting of a quarter section four rods wide and half mile or more long, is impossible of estimation. Such a strip is not salable. It has no market value. Its market value is wholly speculative. As to (2), the diminution of value involved is not that of the remainder of the land, but the diminution in value of the farm as a whole. As far as the remainder is concerned, the question is not how much the value of the remainder is diminished by reason of the taking, but how much is the remainder worth? The rule of the cases referred to is disapproved. The two values--that of the whole tract at the time of and after the taking--are all that is necessary to consider. Attempt...