Nick v. State Highway Commission
| Decision Date | 26 November 1963 |
| Citation | 21 Wis.2d 489,124 N.W.2d 574 |
| Parties | Marie B. NICK, Appellant, v. STATE HIGHWAY COMMISSION of Wisconsin, Respondent. |
| Court | Wisconsin Supreme Court |
Walstead, Anderson, Bylsma & Eisenberg, Madison, Elliott N. Walstead, Milwaukee, for appellant.
George Thompson, Atty. Gen., A. J. Feifarek, Asst. Atty. Gen., Madison, for respondent.
In Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95, this court held that an impairment of the use of property by the exercise of the police power, where the property itself is not taken by the state, does not entitle the owner of such property to compensation. It was noted that Mrs. Nick still had access to highway 30 via the use of Calhoun road.
The court relied on the reasoning of Carazalla v. State (1955), 269 Wis. 593 608b, 70 N.W.2d 208, 71 N.W.2d 276, which was also a controlled-access highway case. In Carazalla, this court approved the conclusion of textwriters that if no land is taken for the converted highway but an abutting landowner's access to the highway is merely made more circuitous, no compensation should be paid. Stefan Auto Body v. State Highway Comm. (1963), Wis., 124 N.W.2d 319.
In the present proceedings, Mrs. Nick seeks a permit to construct a driveway from her property to highway 30. The Commission denied her application without a formal hearing, asserting that any additional access points would not be in the public interest. Mrs. Nick believed that she was entitled to a hearing and appealed to the circuit court. That court dismissed her petition for review of the Commission's determination, and we are in accord with that judgment.
In 1951, prior to the time of Mrs. Nick's acquisition of the property in question, the State Highway Commission declared highway 30 to be a controlled-access highway. Mrs. Nick's predecessor in interest, Mr. Reinders, had the same opportunity which was available to all other interested parties to challenge the designation of highway 30 as a controlled-access highway at a public hearing.
Notice of the hearing was given by publication pursuant to sec. 84.25(1), Stats. The statutory notice provisions were reasonably calculated to apprise interested parties of the impending action. See 1 Merrill, Notice p. 510-511, sec. 518.
Mrs. Nick argues that an abutting owner would not be concerned about the 1951 public hearing or disturbed by the absence of individual notice for the reason that the owner would expect to receive compensation if his property rights were later affected by the denial of a driveway permit. We are unable to accept this theory of a continuing, dormant right to challenge the propriety of the original hearing. The mistaken expectation of compensation did not give the landowner the right to take a belated appeal from the 1951 hearing. As we said in the previous Nick Case, 13 Wis.2d at page 518a, 111 N.W.2d at page 96:
'We hold that the relief of judicial review of the administrative decision provided by statute is the exclusive remedy, with right of appeal from the reviewing court to the supreme court, per sec. 227.21, Stats. Appellant did not exhaust her remedy of judicial review.'
Mrs. Nick can hardly complain because she did not get notice of the 1951 hearing; she did not acquire any interest in the real estate until over four years after the hearing. She knew or should have known of the status of highway 30 at the time of her purchase. Since her predecessor in interest did not appeal the Commission's decision, the circumstances of the hearing in 1951 can be of no benefit to Mrs. Nick in her present claim for a driveway permit. In the earlier Nick Case, 13 Wis.2d at page 515, 109 N.W.2d at page 73 we said:
Thus, Mrs. Nick has no current right to a hearing based upon the 1951...
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