Simpson v. Waukesha Cnty.

• Decision Date: 10 February 1925
• Citation: 202 N.W. 366,185 Wis. 662
• Parties: SIMPSON ET UX. v. WAUKESHA COUNTY.
• Court: Wisconsin Supreme Court

185 Wis. 662

202 N.W. 366

SIMPSON ET UX.

v.WAUKESHA COUNTY.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Condemnation proceedings for highway purposes by Waukesha County. From award of the county court, W. J. Simpson and wife appeal to the circuit court. Verdict for plaintiffs-appellants, and from an order granting defendant's motion for new trial unless plaintiffs would accept decreased award, they appeal. Reversed and remanded, with directions to enter judgment on verdict.

This is a condemnation proceeding for highway purposes. The appellants, W. J. Simpson and wife, owned a farm, one piece of 40 acres to the north and one of 6 acres. The strip proposed to be taken was 50 feet wide at the easterly, and a little wider at the westerly, end of the south edge of the 6 acres. This strip bordered on the right of way of the Chicago, Milwaukee & St. Paul Railway and 12 feet thereof was then subject to an easement for a right of way to adjoining lands, and the east end then had a 56-foot frontage on a public highway. The taking required the destruction or removal of a barn; a change in barnyard and chicken yard; new fencing; an impairment of the then use of the 6 acres for a garden; an alteration in the approach to the 40-acre piece; the destruction of a large apple tree and shrubbery; a depreciation in the value of the dwelling by reason of its being brought within 22 feet of a new highway. Besides this was the element of the value of the .77 acres taken and any consequent diminution in value of the entire farm.

Plaintiffs bought the 46 acres about six years prior to the condemnation in 1920, paying $4,700, and had added about $1,600 in improvements together with their own labor.

Upon the hearing in the county court the following items were allowed: Moving barn, $200; interference with the barn and chicken yards, $100; damage from having the highway close to the house, $300; establishing a new garden, $200; removal of the currants, apple trees, and shrubbery, $100; a new fence, $200; and real estate taken, $400--a total of $1,500. This amount was paid into court and the county entered into possession.

Upon appeal by the plaintiffs to the circuit court, a jury trial was had, and upon plaintiffs' request a view of the premises was had. Thereafter upon testimony by the plaintiffs and witnesses on their behalf, some of whom placing the damages for such taking at $4,000 and some testifying to a very substantial increase in the value of the farm during plaintiffs' ownership, and with opposing testimony the jury awarded $3,733 damages.

Upon defendant's motion for a new trial it was a conceded fact that upon the view the jury's inspection had been limited to the 6 acres, and they made no examination of the 40 acres which lay to the north and on the other side of a hill, although the damages to the whole 46 acres were necessarily involved in the proceedings and award. The trial...