State ex rel. Evjue v. Seyberth

• Decision Date: 02 February 1960
• Citation: 9 Wis.2d 274,101 N.W.2d 118
• Parties: STATE ex rel. William T. EVJUE, Appellant, v. Leonard J. SEYBERTH et al., Respondents.
• Court: Wisconsin Supreme Court

Page 118

101 N.W.2d 118

9 Wis.2d 274

STATE ex rel. William T. EVJUE, Appellant, v. Leonard J. SEYBERTH et al., Respondents.

Supreme Court of Wisconsin.

Feb. 2, 1960.

Rieser, Stafford, Lesselyoung & Rosenbaum, Madison, for appellant.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Paul D. Hilton and Lee Nutt, Wausau, of counsel, John W. Reynolds, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for respondent.

MARTIN, Chief Justice.

Rib Mountain State Park comprises 550 acres of wooded land located on the top of Rib Mountain in Marathon county close to the city of Wausau. It has been a state park for 37 years and is under the jurisdiction of the Conservation Commission. It was acquired by quit-claim deed from Marathon county in 1922. Also on Rib Mountain and contiguous to the park is a 110 acre tract which was owned, in the spring of 1957, by the Record-Herald Company, a newspaper corporation, which was a stockholder of the TV Corporation.

The top of the mountain is generally considered the highest point of land in the state and as such is uniquely suited for radio and television transmission purposes. In an area at the summit the Marathon county traffic patrol, sheriff's department, highway department and Wausau police and fire departments had, for a number of years, a stone building and a 100-foot tower for the operation of a two-way radio system.

An area approximately 1,300 feet long and 600 feet wide near the summit is encircled by a black-top road. This area is used as a camping and picnicking area and is provided with public parking, observation, toilet and concession facilities.

Since 1949 the Radio Council, with the consent of the Conservation Commission, has maintained within the encircled area a radio tower and antenna 208 feet high. This tower carried broadcasting facilities for state station WHRM, the motor vehicle department and the forest protection division of the conservation department. An area 140 feet square in approximately the same location as the Radio Council's facilities was leased to the TV Corporation by the Conservation Commission by an agreement and lease dated August 8, 1957 and ratified October 11, 1957 for the purpose of constructing a transmission building and television tower and antenna.

In the spring of 1957 the TV Corporation, which operates WSAU-TV, considered moving its tower and antennas to the 110 acre tract on Rib Mountain which the Record-Herald Company was willing to sell to it. The plan was discussed with the director of the Wisconsin Aeronautics Commission, who objected to it on the ground that a multiplicity of towers on Rib Mountain would constitute hazards to air navigation. The director requested that the TV Corporation apply to the Conservation Commission for a lease of land so that in the interests of air safety there could be erected on Rib Mountain but one tower to accommodate all the radio and television facilities. The TV Corporation then entered into negotiations with the Conservation Commission which culminated in the agreement and lease in question.

The Conservation Commission leased to the TV Corporation, for an annual rental of $100, the 140-foot square parcel of land above referred to for a term of fifteen years renewable for another fifteen years by mutual consent. By the terms of the agreement and lease the TV Corporation was to erect, maintain and operate, at its own expense and without expense to the state, a televison and radio transmitting tower and a television transmitting building. The tower built by the TV Corporation is 535 feet in height with a television antenna extending an additional 113 feet higher, or a total height of 648 feet above the ground. The structure is anchored by groups of guy wires to three anchor bases located about 300 feet from the bottom of the tower. The agreement and lease provided that all the existing communication facilities in use on Rib Mountain should be transferred to and installed on the new tower by and at the expense of the TV Corporation; and detailed technical specifications for the protection of the state-owned facilities were included. The Radio Council's facility is at the height of 535 feet. Also at the Corporation's expense the Radio Council's building was enlarged and the addition houses the Corporation's television and radio equipment. The lease provided that upon termination of the agreement the transmitting building shall become the property of the state.

Throughout the negotiations for the lease it was understood that the TV Corporation would acquired and transfer to the Conservation Commission, as part of the consideration, the 100-110 acres of land then owned by the Record-Herald Company. The transfer was not included in the agreement and lease but deeds to said lands were executed and delivered by the TV Corporation to the state and accepted by the Conservation Commission on September 17, 1958. The delay was occasioned by the necessity of making an appraisal so that a fair price could be put on the land at the time the TV Corporation purchased it from the Record-Herald Company. A survey was also necessary since in the conveyance to the state 100 acres were to be conveyed outright but ten acres in the north portion were to have a reservation for the protection of the interests of the TV Corporation in the event the lease was not renewed.

Relator first contends that the lease in question is in violation of art. XI, sec. 3a of the Wisconsin Constitution. That section provides:

'The state or any of its cities may acquire by gift, purchase, or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their environs, and to preserve the view, appearance, light, air and usefulness of such public works.'

Relator's argument is that the constitutional provision restricts the power of the legislature to authorize a lease of state park lands and that such restrictions have not been complied with. This court has held that the section is a grant of power and not a restriction on the power of the legislature. As stated in State ex rel. Thomson v. Giessel, 1955, 271 Wis. 15, 53-54, 72 N.W.2d 577, 597:

'We are obliged to determine that the provision is a grant of power which broadened the authority of the state and cities in the matter of excess condemnation in relation to the rights of the state and cities which had existed in such respects previous to the adoption of the provision.'

See, also, Newell v. City of Kenosha, 1959, 7 Wis.2d 516, 96 N.W.2d 845.

Relator relies on Cutts v. Department of Public Welfare, 1957, 1 Wis.2d 408, 414, 84 N.W.2d 102, 105, where this court held there was no violation of sec. 3a, art. XI in the transfer of property from one department of the state to another. In that case this court said:

'We construe sec. 3a, art. XI, Const., in so far as applicable to the conveyance of excess state owned lands, as operative only in a situation where title is transferred out of the state to some other entity or person.'

This is not to say that a conveyance of such lands to a private entity would violate the section. There is nothing in the Cutts opinion to indicate a change in the court's view previously stated in State ex rel. Thomson v. Giessel, supra, and affirmed in Newell v. City of Kenosha, supra, in 1959.

So far as necessity of the leased land for park purposes is concerned, it is to be noted that the area involved is .45 of an acre, amounting to .082 per cent of the total park area of some 550 acres. To remove .082 per cent of the park area from use by the public for camping, recreation, etc. in no way interferes with the enjoyment of the park by the public.

Neither can it be said that the tower structure violates the constitutional requirement that the view, appearance, light, air and usefulness of the park be preserved. Since 1949 the Radio Council tower has been located within 50 feet of the present tower and has occupied about the same amount of land at its base. No one ever suggested that the radio tower destroyed the view, light, air and usefulness of the park. Manifestly, it did not. Nor does the present tower, which is a similar structure except that it is much higher. As pointed out in the oral argument, the beauty of the park is enjoyed by more campers and picnickers from the ground than from an airplane. And the tower is not so placed that it interferes with a view not found in abundance elsewhere in the park.

By sec. 27.01(2), Stats. the Conservation Commission is given charge and supervision of the state park system to carry out the purposes stated in subd. (1) to be:

'It is hereby declared to be the policy of the legislature to acquire, improve, preserve and administer a system of areas to be known as the state parks of Wisconsin. The purpose of the state parks is to provide areas for public recreation and for public education in conservation and nature study. An area may qualify as a state park by reason of its scenery, its plants and wildlife, or its historical, archaeological or geological interest. The conservation commission shall be responsible for the selection of a balanced system of state park areas and for the acquisition, development and administration of the state parks. No admission charge shall be made to any state park.'

The various powers granted to the Conservation Commission in subd. (2) include:

'(f) Grant concessions or franchises for the furnishing of supplies or facilities and services on the state...