Northern States Power Co. v. Town of Hunter Bd. of Sup'rs, 11
| Decision Date | 30 January 1973 |
| Docket Number | No. 11,11 |
| Citation | 203 N.W.2d 878,57 Wis.2d 118 |
| Parties | NORTHERN STATES POWER CO., Appellant, v. TOWN OF HUNTER BOARD OF SUPERVISORS, Respondent. |
| Court | Wisconsin Supreme Court |
Arnold P. Anderson, Carroll, Parroni, Postlewaite & Anderson, Eau Claire, for appellant.
Howard E. Hanson, Hayward, for respondent.
The issues presented on this appeal are:
1. Was the order of the Hunter town board, laying out the highway, an abuse of discretion because:
a. it circumvents sec. 80.13(5), Stats.1969;
b. the public good is not promoted; and there is no necessity for the highway?
2. Was the Hunter town board's order void in that:
a. the jurisdictional requirments of sec. 80.07, Stats.1969, were not followed; and
b. the board minutes were inadequate?
Abuse of Discretion.
NSP contends that the town board abused its discretion by ordering the highway to be laid out over NSP land because it is a circumvention of sec. 80.13(5), Stats.1969. This subsection provides:
(Emphasis added.)
The trial court construed 'accessible' to mean 'directly physically accessible.' It ruled, therefore, that Wise's land which was later purchased by Petranek, was not 'directly physically accessible' to a public highway, and that, as to this land, Wise did not come within the terms of sec. 80.13(5), Stats.
The trial court was correct in this ruling. Throughout sub. (5) and the balance of this statute there is no doubt that the word 'accessible' has a physical connotation. 2 The meaning of the statute is plain and unambiguous. Ambiguity exists where 'a statute is capable of being understood by reasonably well-informed persons in two or more different senses.' 3 The word 'accessible' as used in sec. 80.13(5) is plain and unambiguous in connoting direct physical contact. Since the wording of the statute here is plain and unambiguous we do not need to resort to secondary sources of legislative intent (such as the bill-drafting instructions when sec. 80.13(5) was adopted in 1957). 4 There is no doubt that the Petranek parcel of land is not 'accessible' within the contemplation of this statute.
Even assuming NSP is correct in its interpretation of the word 'accessible' (as land near to but not necessarily directly physically accessible to a highway), NSP is incorrect in its further contention that Wise had a duty to barter with it, as the adjoining landowner, for a highway giving access to Wise's landlocked parcel; and also that the consequence of the failure to so barter is the foreclosure from ever receiving access from that parcel to a public highway. Sec. 80.13(5), Stats., specifically provides for the consequences of a failure of a landowner to provide access to the public highway:
'. . . In case the seller fails to do so the town board may, pursuant to proceedings under this section, lay out a road from such inaccessible land to the public highway over the remaining lands of the seller without assessment to the latter of damages or compensation therefor.'
As is obvious, this subsection does not contemplate the permanent foreclosure of landlocked property from access to a public highway where a seller neglects to provide such access to the land he subdivides. Sec. 80.13(5), Stats., in no way bars the town from laying out the disputed highway to the Petranek parcel.
The NSP also argues that the town board abused its discretion by ordering a highway laid out over its property because there was no necessity for such highway and the action did not promote the public good. Sec. 80.13(1), Stats., provides the conditions for the laying out of a highway to landlocked property such as the one disputed here:
Subsection (3) provides authorization to lay out such a highway:
'(3) The supervisors shall meet at the appointed time and place and shall then in their discretion proceed to lay out such highway of not more than three nor less than two rods in width to such real estate, or shall add enough land to its width to make it not less than two nor more than three rods in width, and shall assess the damages to the owner or owners of the real estate over or through which the same shall be laid or from whom land shall be taken and the advantages to the applicant.'
While the discretion granted to towns by this statute 'is intended to be and probably generally is generously exercised to accommodate the landowner,' it is clear that the right of a locked-in landowner to utilize this statute is not absolute. 5 Some necessity must exist in order to utilize the proceedings outlined in sec. 80.13, Stats.
6
Under the statute the two is given discretion to lay out a highway where a property owner is landlocked on all sides. The concept of necessity is spelled out in the statute itself:
'. . . by being surrounded on all sides by real estate belonging to other persons or by such real estate and by water, . . . that he is unable to purchase from any of said persons the right of way over or through the same to a public highway, . . . or that it cannot be purchased except at an exorbitant price . . ..' 7
NSP argues that there is no necessity to lay out a public highway in this case for three reasons: (1) Petranek's knowledge of the lack of an access when he purchased the property; (2) the land is not improved by such easement; and (3) the environmental commitment of NSP along with the Wisconsin Department of Natural Resources to preserve the wilderness nature of this area is not advanced by giving such an access to Mr. Petranek. These considerations are simply irrelevant under sec. 80.13, Stats.
NSP also argues that the public good is not promoted by the Hunter town board's laying out a highway over NSP property. 8 The cases relied upon by NSP, however, are distinguishable because, as the town correctly points out, they both involved 'side agreements' between the town boards and the landlocked property owners. It was held:
'. . . Not only are such bargains void as against public policy, but official action based thereon ceases to be based solely upon the public welfare, and becomes tainted with some degree of private interest.' 9
Here there are no such private agreements apparent from the record. Moreover, private interests are not necessarily antithetical to the public good and interest. Illustrations of this principle are cases upholding the condemnation process 10 and public industrial financing of private industry. 11 So here, a public purpose is served by permitting a highway to be laid out over the NSP land. In adopting sec. 80.13, Stats., the legislature has presumably acted with this in mind.
Legality of Highway Order.
Although the town board had the authority, in its discretion, to lay out the disputed access highway, its order laying out the highway is void because the town did not follow the precise procedure set out by the statutes and it, therefore, lost jurisdiction.
It lost jurisdiction when it ordered the amounts assessed as advantages to Petranek to be filed with the town treasurer within sixty days of such order. Although sec. 80.13(4), Stats., does not prescribe a precise time limit as to when the applicant for the laying out of a highway, as here, must pay the amounts assessed to him as advantages, the only requirement is that such advantages be paid prior to the filing of...
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