Schneider v. State (Division of Highways), 274

• Citation: 187 N.W.2d 172,51 Wis.2d 458
• Decision Date: 02 June 1971
• Docket Number: No. 274,274
• Parties: Arthur W. SCHNEIDER et al., Appellants, v. STATE of Wisconsin (DIVISION OF HIGHWAYS), Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 172

187 N.W.2d 172

51 Wis.2d 458

Arthur W. SCHNEIDER et al., Appellants, v. STATE of Wisconsin (DIVISION OF HIGHWAYS), Respondent.

No. 274.

Supreme Court of Wisconsin.

June 2, 1971.

This is an appeal from a proceeding relating to the partial taking of land owned by the plaintiffs-appellants (hereinafter plaintiffs) by eminent domain for highway purposes. The trial court found the damages determined by the jury to be excessive. A new trial was ordered with the option to remit granted the plaintiffs. The plaintiffs rejected the option, and a new trial was ordered. The State of Wisconsin, defendant-respondent, (hereinafter defendant) has also petitioned for review.

Callahan & Arnold, Columbus, for appellants; Richard R. Rynders, Madison, of counsel.

Robert W. Warren, Atty. Gen., E. Gordon Young, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

Plaintiffs owned approximately 55 acres of land adjacent to Sun Prairie, abutting State Highway 151 on the south and Thompson road on the east. Thompson road and State Highway 151 intersected at the southeast corner of plaintiffs' property.

In 1956, under the provisions of sec. 84.25, Stats., the State of Wisconsin designated State Highway 151 a controlled-access highway under the police power. Subsequent to 1956, access to State Highway 151 from the Schneider property was permitted by private permit and via Thompson road by public highway permit. On April 23, 1968, the state acquired 3.29 acres of plaintiffs' property abutting State Highway 151 and Thompson road in an eminent domain proceeding for construction of a frontage road. At the same time the permitted direct access from the plaintiffs' property to State Highway 151 was withdrawn and the intersection of Thompson road with State Highway 151 was closed under the provisions of sec. 84.25.

Plaintiffs were not satisfied with the award granted for the partial taking of their property and appealed to the circuit court for Dane county. The jury found the value of the plaintiffs' property, before the taking, was $175,000; and the value, after the taking, was $158,000; thus finding the damage suffered by the plaintiffs as a result of the taking was $17,000. The trial court held the jury's verdict was excessive and ordered the plaintiffs to remit $4,000, or have a new trial. Plaintiffs elected to reject the option to remit the $4,000 and the court ordered a new trial. Plaintiffs have appealed from the order of the trial court modifying the verdict and granting the option to remit $4,000, or have a new trial.

PLAINTIFFS' APPEAL

The issue raised by plaintiffs is whether the amount of damages, as determined by the jury's verdict, were excessive.

The measure of damages in a condemnation proceeding, where there is a partial taking, is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remainder immediately thereafter. Besnah v. Fond du Lac (1967), 35 Wis.2d 755, 758, 151 N.W.2d 725; KenCrete Products Co. v. State Highway Comm. (1964), 24 Wis.2d 355, 359, 129 N.W.2d 130; sec. 32.09(6), Stats.

At the trial, the defendant's value witness testified to a before-taking value of $161,400 and an after-taking value of $150,400, or $11,000 in severance damages. Plaintiffs' value witness testified to a before-taking value of $182,000 and an after-taking value of $156,000, or severance damages of $26,000. Plaintiffs' expert testified that the 35 acres of the Schneider property closest to State Highway 151 had been reduced $500 per acre in value by the taking. He testified that these 35 acres were frontage land with a corner, having a value of $3,500 per acre before the taking and $3,000 per acre after the taking. He stated that the reduction in value of the front 35 acres was by reason of the change in the highest and best use of the property and the loss of the commercial factor.

On cross-examination, he testified that the highest and best use of the property prior to the taking was residential and commercial, and that the commercial value of the property was based on its location in relationship to the community and the fact that it was a corner site. He stated that it was a corner site because of the intersection of State Highway 151 and Thompson road. He further testified that the front 35 acres lost $500 per acre in value due to the change in the highest and best use, and that this was due to loss of the corner influence and to a change in grade. He stated that the loss of the corner influence was due to the closing of the intersection of State Highway 151 at Thompson road. He was unable to attribute the loss of commercial value between the loss of the corner and the change in grade. However, he did testify that loss of commercial value was due primarily to loss of the corner. The diminution in value of the front 35 acres by $500 per acre, by reason of the change in the highest and best use because of the closing of the intersection and the change in grade, amounted to $17,500 of the total $26,000 in damages testified to by the plaintiffs' value expert.

The intersection of State Highway 151 and Thompson road was closed under the exercise of the police power of the state. Control of traffic is subject to the police power of the state. Stefan Auto Body v. State Highway Comm. (1963), 21 Wis.2d 363, 373, 124 N.W.2d 319. The creation of a controlled-access highway is a proper exercise of the police power. Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95; McKenna v. State Highway Comm. (1965), 28 Wis.2d 179, 135 N.W.2d 827. This court has held that the exercise of the police power allows injury to property without compensation. Luber v. Milwaukee County (1970), 47 Wis.2d 271, 177 N.W.2d 380; More-Way North Corp. v. State Highway Comm. (1969), 44 Wis.2d 165, 170 N.W.2d 749. Where access to a highway is controlled under the exercise of the police power and reasonable access remains, no compensation is required. Nick v. State Highway Comm., supra.

Acquisition of property under the power of eminent domain requires just compensation for the taking of interests in property. However, the plaintiffs' property interests do not include an interest in the Thompson road intersection. This is so because there is no property right to the flow of traffic. The right of access or of ingress and egress of an abutting property owner is a property right the taking of which requires compensation. Carazalla v. State (1955), 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276; Stefan Auto Body v. State Highway Comm., supra. However, there was no issue in this case concerning the adequacy of access from the Schneider property by the frontage road. Since the state provided reasonable access to and from the Schneider property by a frontage road there was no taking requiring compensation.

'* * * If by reason of providing a frontage road, or the existence of a previously existing connecting highway, there is reasonable access to the controlled access highway, no taking requiring...