Swenson v. Milwaukee County

• Decision Date: 02 March 1954
• Citation: 266 Wis. 129,63 N.W.2d 103
• Parties: SWENSON et ux. v. COUNTY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

Page 103

63 N.W.2d 103

266 Wis. 129

SWENSON et ux. v. COUNTY OF MILWAUKEE.

Supreme Court of Wisconsin.

March 2, 1954.

Mandamus. Action commenced on August 19, 1952 to compel Milwaukee County to remove from the premises of the plaintiffs a sanitary sewer installation. It is alleged in the complaint and not denied that some time after 1935 and before June, 1950 the county installed the sewer and that in 1950 it was discovered that a part of the installation was made upon plaintiffs' property. The encroachment extends upon plaintiffs' property to a width of not to exceed thirty inches and a length of about nine hundred fifty feet. It appears from the affidavits that the installation was made to provide drainage from Kletzsch Park, a part of the county's parkway system.

During the pendency of this action and when efforts at adjustment of the dispute had failed, the County Parkway Commission, acting for and in the name of the county, and under authority of sec. 27.05, Stats., made petition to the circuit court for condemnation of the land upon which the installation encroaches, in which petition it is set forth that the land is desired as a necessary addition to Kletzsch Park. Hearing on the petition was had on December 12, 1952. Upon findings that the county is entitled to condemn the property, an order was entered appointing three freeholders as appraisers in accordance with the provisions of sec. 32.08, Stats. It is not disputed that necessity had been determined by the county, nor that there was any irregularity in the condemnation proceedings.

On November 19, 1952 the county served and filed in the instant action a plea in abatement alleging the institution and pendency of the condemnation proceedings. It is not contended that the plea in abatement is unavailable to the county. Motion for summary judgment was made in this action by plaintiffs and was denied by order entered on February 5, 1953. Plaintiffs appeal.

E. C. Pommerening, Milwaukee, Glen E. Pommerening, Milwaukee, of counsel, for appellants.

William J. McCauley, Dist. Atty., Oliver L. O'Boyle, Corp. Counsel, George E. Rice, Asst. Corp. Counsel, Milwaukee, for respondent.

GEHL, Justice.

Plaintiffs contend that it has not been shown that there is necessity for taking the land. In that connection they urge that the installation can be located just as conveniently and less expensively on the county's own property. Sec. 32.07 Stats. provides:

'The necessity of the taking shall be determined as follows:

'(1) * * *.

'(2) If the application be by a * * * county, * * * the petitioner shall determine the necessity.'

That the legislature has power to authorize the county to make the determination without the requirement of trial by jury cannot be questioned. State ex rel. Bare v. Schinz, 194 Wis. 397, 216 N.W. 509. It has been held by this court in accord with the rule generally stated that the determination of necessity for taking land in the exercise of the right of eminent domain rests in the 'wisdom of the legislature', that the question is for the legislative department of the government exclusively. Smeaton v. Martin, 57 Wis. 364, 15 N.W. 403. Quoting from National Docks R. Co. v. Central R. Co., 32 N.J.Eq. 755, 763 this court has said:

'It is not indispensable that the legislature shall determine that any given enterprise is necessary and proper before putting in operation the power of eminent domain. This power is primarily an absolute one, and theoretically exists in this absolute form in the ultimate source of authority in every organized society. In the constituted government of this state the right of exercising...