Nelson v. Department of Natural Resources
| Decision Date | 25 May 1979 |
| Docket Number | No. 79-269,79-269 |
| Citation | 280 N.W.2d 334,90 Wis.2d 574 |
| Parties | Kenneth W. NELSON, Petitioner-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Respondent. |
| Court | Wisconsin Court of Appeals |
Stephen F. Hansen and Johnson, Hansen & Shambeau, Waupaca, for petitioner-appellant.
Bronson C. La Follette, Atty. Gen., and Nancy L. Arnold, Asst. Atty. Gen., for respondent.
Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.
This is an appeal from the judgment of the trial court entered January 5, 1979 dismissing the petitioner-appellant's petition for review of a Department of Natural Resources' order which granted him authority to operate and maintain a dam in Waupaca County. The petitioner contested provisions of the permit which allowed public access for the purposes of fishing and traversing upstream and downstream on the flowage.
Appeals involving administrative agency decisions under sec. 227.21 are exceptions to the time limits for appeal under sec. 808.04(1), Stats. See sec. 808.04(2), Stats. Pursuant to sec. 227.21, the time for appeal was limited to 30 days from notice of entry of judgment. The notice of entry of judgment is dated January 9, 1979, and is stamped filed January 12, 1979. The department's memorandum brief on the timeliness of the appeal states that the notice of entry of judgment was mailed to counsel for the petitioner on January 10, 1979. Petitioner does not dispute this point and petitioner's attorney states that he received the notice of entry by mail on January 16, 1979, under cover of a letter dated January 10, 1979. Because this point is undisputed we conclude that the notice of entry of judgment was mailed on January 10, 1979, even though there is no affidavit of service in the record or other proof establishing mailing on that date.
The time for appeal commences to run from the date of the service of the notice of entry of judgment. Chequamegon Telephone Cooperative v. ILHR Dept., 55 Wis.2d 507, 511, 200 N.W.2d 441 (1972). Pursuant to sec. 801.14(2), Stats., service by mail is complete upon mailing. Because service of the notice of entry of judgment was made by mail the petitioner received an additional three days to appeal under sec. 801.15(5), Stats. The petitioner therefore had 33 days from the time of the mailing of the notice of entry of judgment to appeal the judgment, or until February 12, 1979. Because the notice of appeal was filed February 20, 1979, it was late and the appeal must be dismissed.
The petitioner's attorney contends that the appeal was not late under the 30-day provision of sec. 227.21 because he did not receive the notice of entry of judgment until January 16, 1979, and h...
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