Sheeley v. Chippewa Cnty.

• Citation: 217 Wis. 41,258 N.W. 373
• Parties: SHEELEY v. CHIPPEWA COUNTY.
• Decision Date: 08 January 1935
• Court: United States State Supreme Court of Wisconsin

217 Wis. 41

258 N.W. 373

SHEELEY

v.CHIPPEWA COUNTY.

Supreme Court of Wisconsin.

Jan. 8, 1935.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Circuit Judge. Affirmed.

Condemnation proceedings commenced September 21, 1932, pursuant to the provisions of chapter 32 of the statutes, by Howard Sheeley and others, owners of certain improved real estate in the city of Chippewa Falls, for the purpose of having determined the value of the land and rights asserted to have been taken by the county of Chippewa. Commissioners were appointed who made an award in favor of the petitioner, Howard Sheeley. From that award the county appealed to the circuit court for Chippewa county where a trial de novo was had. From a judgment dismissing the action, entered July 3, 1933, Howard Sheeley appealed.

W. H. Stafford and Harold E. Stafford, both of Chippewa Falls, for appellant.

Robert L. Wiley, Dist. Atty., of Chippewa Falls (P. J. Murphy, of Chippewa Falls, of counsel), for respondent.

NELSON, Justice.

In 1932, Howard Sheeley, hereafter called the plaintiff, operated a combination store and gasoline filling station located upon A street in the city of Chippewa Falls in Chippewa county. A street was a part of State Trunk Highway 29 as it then existed. The state highway commission, some time prior to the commencement of these proceedings, relocated State Highway 29 and also United States Highway 53, in the city of Chippewa Falls. Those projects included the construction of a new bridge over the Chippewa river, the making of a fill on the south side thereof, and the erection of a viaduct over old State Highway 29 (A street). The erection of the viaduct over State Highway 29 necessitated the temporary closing of that part of State Highway 29 upon which the plaintiff's store and filling station abutted. Barriers were erected by the contractor and signs posted thereon containing the words, “Street Closed.” The barriers effectively closed the road to travel from July 18, 1932, to October 26, 1932. No part of plaintiff's land was taken.

The court found the facts substantially as stated and also found that, while the work of constructing the viaduct over A street was progressing, it was necessary to close said street in order that the work be properly and safely performed and the public, traveling on said highway, protected; that the purpose of the barriers was to secure the temporary use of a portion of A street by those who were engaged in the construction of the viaduct, to the exclusion of public travel; that the barriers constituted a lawful closing and obstruction of the full width of the street leading to the plaintiff's property which materially interfered with the usefulness of said street as a highway; that the plaintiff was deprived of the use of his property as a store and gas station during the time that the barriers were erected; and that the plaintiff was damaged as a result thereof in the sum of $475. The court, however, concluded that section 80.47 of the statutes (upon which the plaintiff relied), as construed by this court, did not entitle the plaintiff to recover the damages sustained by him as a result of the temporary closing of the street.

The question for determination is whether the plaintiff is entitled to recover damages that resulted from a temporary closing of the street made necessary by the construction of a public improvement.

The plaintiff contends that section 80.47 authorizes the recovery by him of the damages asserted to have been sustained. So much of that section as the plaintiff deems applicable is as follows: ...