Nowaczyk v. Marathon Cnty.

• Citation: 238 N.W. 383,205 Wis. 536
• Parties: NOWACZYK ET AL. v. MARATHON COUNTY.
• Decision Date: 13 October 1931
• Court: United States State Supreme Court of Wisconsin

205 Wis. 536

238 N.W. 383

NOWACZYK ET AL.

v.MARATHON COUNTY.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.

Condemnation proceeding by Marathon County against Stanley Nowaczyk and Frances Nowaczyk. From the award of the county judge, Stanley Nowaczyk and Frances Nowaczyk appealed to the circuit court as parties plaintiff. From the judgment entered, Stanley Nowaczyk and Frances Nowaczyk appeal.--[By Editorial Staff.]

Affirmed.

Proceeding to condemn land for highway purposes commenced September 11, 1930; judgment entered January 31, 1931. The landowners appeal.

The county highway committee of Marathon county, pursuant to section 83.07, Stats., petitioned the county judge to appraise the damages sustained by plaintiffs by the taking of a strip of land through their farm for the relocation of a county trunk highway surfaced with concrete. The road cuts nearly diagonally through a quarter section of land, passes to the rear instead of the front of the farm buildings, cuts the pasture land in two, makes necessary over half mile of additional fencing, passes so near a farm well as to make its use for watering stock inconvenient, cuts stock in pasture off from water from a spring on one side of the road, and takes about seven acres of land. The county judge assessed the damages at $1,548.50, and from this award the plaintiffs appealed to the circuit court, wherein, upon trial, the jury assessed the damages at $1,510, and judgment for that amount was entered.F. E. Bachhuber, of Wausau, for appellants.

Walter A. Graunke, Dist. Atty., and John R. Cashman, Asst. Dist. Atty., both of Wausau, for respondent.

FOWLER, J.

The appellants assign as error that the court: (1) Admitted testimony that the highway benefited the farm; (2) permitted witnesses to testify to separate items of damage; (3) refused to permit cross-examination of defendant's witnesses as to value; (4) refused to grant a new trial for inadequacy of the damages assessed; (5) refused to permit testimony that the highway would periodically flood plaintiffs' land; (6) permitted witnesses to testify as to the cost of fencing the highway. It is also assigned as error that (7) the trial judge was prejudiced against the plaintiffs.

(1) The particular complaint under this heading is that, in receiving testimony that the farm was benefited by the relocation and improvement of the highway, the court should not have admitted testimony relating to such benefits as inured to the general public, but should have admitted only such as related to special benefits. The testimony objected to is that plaintiffs' distance to market was reduced and their road thereto bettered by change of route and improvement of the road.

[1][2][3] The proceedings are subject to the general provisions of chapter 32 of the Statutes (section 32.01 et seq.) governing acquisition of land by the exercise of the right of eminent domain. Section 32.10 (1), Stats., provides that in exercising eminent domain, “except in the case of streets or highways,” no deduction shall be made because of any benefit which the parties may derive from the improvement other than “special benefits.” In case of streets or highways, paragraph (2) of said section provides that both damages and benefits shall be assessed or allowed and the excess of one over the other shall be stated. The kind of benefits is not limited to special benefits. It would seem that the benefits referred to in case of streets and highways must be something more than mere “special benefits,” else there would be no occasion for the exception in paragraph (1). If so, they must include such benefits as accrue to the general public as well as the benefits resulting specially to the land taken. Appellants cite American States Sec. Co. v. Milwaukee Northern R. Co., 139 Wis. 199, 120 N. W. 844, and Smith v. Milwaukee Elec. Ry. & L. Co., 201 Wis. 325, 230 N. W. 44, to the point that only special benefits may be considered. But these cases do not fall within the exception of paragraph (1). The same may be said of Riddle v. Lodi Tel. Co., 175 Wis. 360, 185 N. W. 182, 19 A. L. R. 380, and the cases therein cited. None of these cases involved the taking of land for highway purposes. It is fundamental that in condemnation cases the damages are the difference between the values of the tract as a whole before and after the taking. Riddle v. Lodi Tel. Co., supra; Muscoda Bridge Co. v. Grant County, 200 Wis. 185, 227 N. W. 863; Smith v. Milwaukee Elec. Ry. & L. Co., supra. The items of nearness to market and the nature of the road to market are elements of considerable importance in fixing the value of farms. The witnesses might properly consider the benefit that accrued to the plaintiffs in these respects in arriving at their opinion of the plaintiffs' damage, although the general public received like benefit.

[4] (2) In introducing evidence as to...