Olen v. Waupaca Cnty.

• Decision Date: 07 October 1941
• Citation: 238 Wis. 442,300 N.W. 178
• Parties: OLEN v. WAUPACA COUNTY.
• Court: Wisconsin Supreme Court

238 Wis. 442

300 N.W. 178

OLEN

v.WAUPACA COUNTY.

Supreme Court of Wisconsin.

Oct. 7, 1941.

Appeal from a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Circuit Judge.

Reversed.

In a petition filed by Otto L. Olen under sec. 32.04, Stats., and addressed to the county judge of Waupaca county, Olen alleged that he owns certain described land fronting for sixty feet on a street in the city of Clintonville; that in 1933 Waupaca county, without any condemnation proceedings having been started and without any attempt to settle or pay any damage that might be done to the petitioner's abutting lot, reconstructed county highway “ C” along the street and made a fill of four to five feet, which covered petitioner's adjoining land to that depth in such a manner that his private walk and driveway are impassable, and that his property is impaired thereby because it leaves no way to get from the highway to his lot and house and it will be necessary to reconstruct the buildings and construct a new private walk and driveway and also a supporting wall along the front lot line; and that because of the changed and unpleasant conditions the rental value of his property has greatly decreased and the damage thereto from the change of grade and the fill is about $1,500. The petitioner prays for an order fixing the time and place for a hearing thereon and the appointment of a commission to determine the value of the land so taken and the damages sustained by him, and also prays for judgment for $1,500 damages, or that the county raise his lot to the new grade and reconstruct the buildings and private walk and driveway and build a retaining wall so as to place the premises in the same condition they were in before the fill. Waupaca county, in its answer to the petition, denied that it made the fill and that it had anything to do therewith; and alleged that it at no time has condemned, or taken in any way or manner property belonging to petitioner; that the work done was a federal project under the supervision and control of the federal government and for the sole purpose of providing employment in municipalities; and that if the petitioner has sustained any damages it was a result of work performed as part of the federal projects under the direct supervision and control of the federal Civil Work Administration in conjunction with the city of Clintonville. Pursuant to the petition the county judge issued what purports to be a court order for a hearing at a regular term of the county court. After a hearing before the county judge at which testimony was taken, he filed a decision stating that under the C. W. A. project in 1933, Waupaca county raised the grade of county highway “C” in the city of Clintonville approximately five feet three inches in front of petitioner's property, as a result of which the petitioner alleges there was the taking of his property; and that in this proceeding there is only one question for the county judge, as such, to determine and that is the necessity for the taking, as provided under sec. 32.07(3), Stats. The judge concluded that where a change of grade or other improvement of highways is made by authority of law, and with due care, there is no liability on the part of a county for consequential injury to abutting property, unless such liability is expressly created by the statute or by the constitution; and that “as a consequence, it must be held that there was no necessity for the taking of the property of the petitioner.” Thereupon, petitioner served notice of an appeal to the circuit court for Waupaca county and, after the filing of the record of the proceedings with the clerk of that court, the parties entered into a stipulation for the submittal of the entire record to the circuit court. After a hearing pursuant to the stipulation, judgment was entered “By the Court, Herman J. Severson, Circuit Judge”, which provided that, “It is adjudged that the decision of the county judge of Waupaca county from which this appeal is taken be and is hereby wholly affirmed.” Olen appealed therefrom.

Edward J. Madler, of Clintonville, for appellant.

J. Kyle Anderson, Dist. Atty., of Waupaca, for respondent.

FRITZ, Justice.

[1][2][3][4][5] The record discloses that the parties and their attorneys, as well as the county judge and also the circuit judge, evidently overlooked the legal nature and effect of condemnation proceedings instituted under sec. 32.04, Stats., by the filing of a petition addressed to a county judge by an owner of property which he charges has been taken for public use by a board, commission or public corporation. The authority or power conferred by sec. 32.04 and 32.07, Stats., upon a county judge is not conferred upon him as part of his ordinaryjudicial functions; and no jurisdiction or power is thereby conferred or vested in the county court. Furthermore no appeal to the circuit court is authorized in any proceeding under ch. 32, Stats., until after there has been an award at a later stage in a condemnation matter by commissioners who were appointed for that purpose by the county judge. It is only after such an award has been made that an appeal is authorized to be taken in condemnation proceedings; and it is only after such an appeal has been taken from the commissioners' award to the circuit court, as authorized by sec. 32.11, Stats., that there can be held to be pending any action or proceeding in any court. As we said in Tobin v. Willow River Power Co., 208 Wis. 262, 242 N.W. 480,

“While the proceeding under chapter 32 [Stats.] is before the judge, it is not a proceeding in court. The taking of private property for public purpose is a matter that rests within the power and discretion of the Legislature, and it may be taken upon such terms as the Legislature prescribes, subject to the right of trial by jury on the question of necessity, where property is taken by a municipal corporation. Where a person alleges he is deprived of his property without just compensation, he is entitled to a judicial determination, and that right is given him by way of appeal under section 32.11. When an appeal is taken to the circuit court all issues are subject to a trial de novo as indicated in Skalicky v. Friendship E. L. & P. Co., 193 Wis. 395, 214 N.W. 388.”

See, also, Manns v. Marinette & M. P. Co., 205 Wis. 349, 235 N.W. 426, 238 N.W. 624; City of Green Bay v. Saunders, 237 Wis. 229, 296 N.W. 592;Western Union R. Co. v. Dickson, 30 Wis. 389. As no jurisdiction has been conferred by statute upon either the circuit court or this court to entertain an appeal taken prior to the making of an award by commissioners from any determination made by a county judge at an earlier stage in such proceedings, no jurisdiction of an appeal is acquired by the circuit court by virtue of a notice of appeal. Therefore, ordinarily an appeal so taken prematurely must be dismissed as was held in the cases cited above. When a petitioner considers himself aggrieved, as in the case at bar, by a county judge's determination that...