Nick v. State Highway Commission

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBROWN; CURRIE
Citation13 Wis.2d 511,109 N.W.2d 71
PartiesMarie B. NICK, Appellant, v. STATE HIGHWAY COMMISSION, Respondent.
Decision Date02 May 1961

Page 71

109 N.W.2d 71
13 Wis.2d 511
Marie B. NICK, Appellant,
v.
STATE HIGHWAY COMMISSION, Respondent.
Supreme Court of Wisconsin.
May 2, 1961.

Elliot N. Walstead, Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., A. J. Feifarek, Asst. Atty. Gen., for respondent.

BROWN, Justice.

On and before August 20, 1951, one Reinders owned a tract of farm land in Waukesha county. It is 1,320 feet square and is bounded on the west by a highway called Calhoun Road, and on the south by State Highway 30, generally called the Blue Mound Road. There have never been driveways leading from this parcel into highway 30 and there is no evidence that persons came, by vehicle or otherwise, directly from the Reinders' tract onto highway 30.

On August 20, 1951, the State Highway Commission, pursuant to authority granted it by sec. 84.25, Stats., declared[13 Wis.2d 513] highway

Page 72

30 to be a controlled-access highway. This forbade direct access from Reinders' land to highway 30. Instead, thereafter, traffic between Reinders' property and highway 30 must go via Calhoun Road and its intersection with highway 30.

On December 30, 1955, Reinders sold part of his land to petitioner and her husband, now deceased, being a parcel of 330 feet frontage on highway 30 and 250 feet in depth. This parcel is distant 990 feet east of Calhoun Road. Reinders retained the intervening land. On April 15, 1960, petitioner applied to the commission for a driveway permit from her property to highway 30, which permission was denied on April 19, 1960. She then filed with the circuit court for Waukesha county this petition for inverse condemnation against the commission and prayed the court to assign this matter to the county condemnation commissioners to appraise and determine the value and interest in land alleged to be taken and the damages sustained by the petitioner by reason of the action taken by the State Highway Commission.

The parties agreed to have the circuit court determine the issues upon briefs and upon the facts shown by the record. Upon receipt and consideration of the briefs the court concluded:

'6. It is the opinion of the Court that, if the petition is granted, the entire purpose of the controlled access law would be circumvented and become a nullity.

'7. The petition of the petitioner, Marie B. Nick, is denied.'

The petitioner then appealed.

By sec. 84.25(1), Stats., the legislature empowered the State Highway Commission to designate heavily traveled public highways as controlled-access highways in the interest of public safety, convenience and the general welfare. Subject to judicial review, when the commission so acts in [13 Wis.2d 514] such interest its action is an employment of the police power of the state. Nevertheless, appellant contends this exercise entitles her to compensation.

An impairment of the use of property by the exercise of police power, where the property itself is not taken by the state, does not entitle the owner of such property to a right to compensation. The law on this subject remains as we stated it in State ex rel. Carter v. Harper, 1923, 182 Wis. 148, 153, 196 N.W. 451, 453, 33 A.L.R. 269-a zoning case,

'* * * incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare are not considered a taking of the property for which compensation must be made. * * *'

The situation here bears a close analogy to the enactment and the effect of a zoning statute.

In Carazalla v. State, 1955, 269 Wis. 593, 608b, 70 N.W.2d 208, 71 N.W.2d 276,--a controlled-access highway case,--we approved the conclusion of taxtwriters that if no land is taken for the converted highway but the abutting landowner's access to the highway is merely made more circuitous, no compensation should be paid, and our decision embodied that principle. As recently as March 3, 1961, the Carazalla case has been cited to that point in the controlled-access case of Darnall v. State, S.D., 108 N.W.2d 201, at page 206. The South Dakota supreme court there said:

'* * * While they may adversely affect an established business, relocations of a highway, prohibitions against crossing it or against left and U turns, the designation of one-way streets and other similar restrictions and regulations have been upheld as proper exercises of the police power of the state and not of the power of eminent domain. As such they are not compensable. * * *'

Neither in 1951 nor...

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37 practice notes
  • Hoffer Props., LLC v. State, No. 2012AP2520.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 4, 2016
    ...interest of public safety, convenience, and the general welfare of the public. See Nick v. State Highway Comm'n, 13 Wis.2d 511, 513–14, 109 N.W.2d 71 (1961). Government action such as a regulation can amount to a compensable taking absent a physical occupation, however, "if [the effects of ......
  • State ex rel. State Highway Commission v. Danfelser, No. 7021
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 5, 1963
    ...(S.D.1961) 108 N.W.2d 201; State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; Nick v. State Highway Comm., 13 Wis.2d 511, 109 N.W.2d 71. The majority opinion recognizes this same classification of the decisions, and cites the same cases in support. In addition, I would call a......
  • Ray v. State Highway Commission, No. 44137
    • United States
    • United States State Supreme Court of Kansas
    • January 22, 1966
    ...reasonably provide access (Darnall, et al., v. State, et al., 79 S.D. 59, 108 N.W.2d 201; Nick v. State Highway Comm., 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95) the abutter is not entitled to compensation. While an abutter has the right of access to the public highway system, it does not......
  • 118th St. Kenosha, LLC v. Wis. Dep't of Transp., No. 2012AP2784.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 10, 2014
    ...one of a bundle of rights which appertain to a parcel of real estate.’ ” Id. at 311, 137 N.W.2d 79 (quoting Nick v. State Highway Comm'n, 13 Wis.2d 511, 517–18, 109 N.W.2d 71 (1961) (Currie, J., concurring)). ¶ 31 However, when the government relocates a road, it is not always required to c......
  • Request a trial to view additional results
37 cases
  • Hoffer Props., LLC v. State, No. 2012AP2520.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 4, 2016
    ...interest of public safety, convenience, and the general welfare of the public. See Nick v. State Highway Comm'n, 13 Wis.2d 511, 513–14, 109 N.W.2d 71 (1961). Government action such as a regulation can amount to a compensable taking absent a physical occupation, however, "if [the effects of ......
  • State ex rel. State Highway Commission v. Danfelser, No. 7021
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 5, 1963
    ...(S.D.1961) 108 N.W.2d 201; State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; Nick v. State Highway Comm., 13 Wis.2d 511, 109 N.W.2d 71. The majority opinion recognizes this same classification of the decisions, and cites the same cases in support. In addition, I would call a......
  • Ray v. State Highway Commission, No. 44137
    • United States
    • United States State Supreme Court of Kansas
    • January 22, 1966
    ...reasonably provide access (Darnall, et al., v. State, et al., 79 S.D. 59, 108 N.W.2d 201; Nick v. State Highway Comm., 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95) the abutter is not entitled to compensation. While an abutter has the right of access to the public highway system, it does not......
  • 118th St. Kenosha, LLC v. Wis. Dep't of Transp., No. 2012AP2784.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 10, 2014
    ...one of a bundle of rights which appertain to a parcel of real estate.’ ” Id. at 311, 137 N.W.2d 79 (quoting Nick v. State Highway Comm'n, 13 Wis.2d 511, 517–18, 109 N.W.2d 71 (1961) (Currie, J., concurring)). ¶ 31 However, when the government relocates a road, it is not always required to c......
  • Request a trial to view additional results

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